Digital technology is transforming the landscape of dispute resolution: it is generating an ever growing number of disputes and at the same time is challenging the effectiveness and reach of traditional dispute resolution avenues. While technology has been a disruptive force in the field, it also holds a promise for an improved dispute resolution landscape, one that is based on fewer physical, conceptual, psychological and professional boundaries, while enjoying a higher degree of transparency, participation and change. This promise remains to be realized as the underlying assumptions and logic of the field of dispute resolution have remained as they were since the last quarter of the 20th century, failing to reflect the future direction dispute resolution mechanisms can be expected to follow, as can be learned from the growth of online dispute resolution. This article explores the logic of boundaries that has shaped the traditional dispute resolution landscape, as well as the challenges such logic is facing with the spread of online dispute resolution.

Despite the evolution and the experience in the field of ODR, it appears that some aspects remain to be clarified in order to attempt to determine which type of procedure would be best adapted to consumer disputes. What does online arbitration mean and is this ODR? What is the profile of the users making use of ODR? What mechanisms are adapted to business disputes and to consumer disputes? Are procedural issues for disputes resolved through mediation similar to those resolved through arbitration? The article discusses about indispensable clarifications which may have an impact on the choice of procedure: mediation or arbitration. It then raises issues related to the UNCITRAL ODR WG discussions on a redress system for cross-border consumer disputes and questions whether types of disputes and potential mechanisms are not confused. Finally, the European Union which adopted a Regulation on ODR for consumer disputes may have found a solution.

‘Third Party Ethics in the Age of the Fourth Party’ presents and discusses some of the ethical impacts of the use of information and communication technology (ICT) in third party practice (mediation, facilitation, arbitration, etc.). The article argues that all of the ethical requirements related to third party practice have been affected by the use of ICT, that ethical standards of practice must be reviewed in light of the use of ICT, and that changes in ethical requirements based on the use of ICT will be evolutionary, not revolutionary.

Two phenomena that challenge theories of law in the beginning of the twenty-first century are the regulatory explosion and the emergence of horizontal and interactional forms of law. In this paper, I develop a theory that can address these two phenomena, namely legal interactionism, a theory inspired by the work of Fuller and Selznick. In a pluralist approach, legal interactionism recognizes both interactional law and enacted law, as well as other sources such as contract. We should aim for a pluralistic and gradual concept of law. Because of this pluralist and gradual character, legal interactionism can also do justice to global legal pluralism and to the dynamic intertwinement of health law and bioethics.

The Botswana judicial and legal system has undergone a wave of reforms over the past few years. These reforms include judicial case management, which was introduced to reduce unnecessary delays and backlog in the hearing of cases. The introduction of judicial case management necessitates a revision of the rules of court. While the rules of the courts principally relate to civil proceedings, criminal proceedings are principally regulated by the Criminal Procedure and Evidence Act. However, the revised rules of court contain provisions that seek to bring criminal proceedings in line with judicial case management. A number of these provisions are inconsistent with the Criminal Procedure and Evidence Act. This presents problems for the implementation of these rules as the Criminal Procedure and Evidence Act is superior to the rules in the hierarchy of laws. Consequently, the implementation of judicial case management in criminal proceedings may prove to be an arduous task, and urgent harmonisation of the competing provisions is required.

The field of conflict resolution has developed enough to become diverse and rich with perspectives, yet the common ground between those perspectives – a permanent core essence – has not yet been defined. The use of identity theory, specifically intergroup identity theory, may be the most effective method to understand the field’s foundations. In this article, six possible group identity claims – or grand narratives – are offered. Together, they may form a foundational code for the field, which may be examined and proved in context. Defining the profession of conflict resolution also requires engagement and dialogue with other related professions. In addition to mapping the six grand narratives, this article will suggest how these narratives can at times generate differences with other academic disciplines that deal with conflicts.

Compared with other disciplines in the social sciences, conflict resolution is a relatively new, emerging professional and academic field. Many developments have shaped the current reality and boundaries of the field. This article is an attempt to provide a set of reflections on the major issues, challenges and possible future directions facing the field of conflict resolution. By narrating my own personal and professional journey, I hope to capture certain aspects and perspectives of this field. This is not a comprehensive review or ‘scientific’ charting of the field, nevertheless it attempts to shed light on areas and concepts that are otherwise taken for granted or neglected when the mapping of the field is done through more extensive empirical research. This mapping of conflict resolution after 30 years of practice, teaching and research first involves reflections on the conceptual or so-called theoretical groundings of the field. Second, it examines the various professional practices that have branched out through the last few decades. Third, it identifies some of the current limitations and challenges facing conflict resolution practitioners and scholars in their struggle to position the field in relation to current global realities. The final section discusses possible future directions to address existing gaps and refocus the research agenda of the field.

OECD Guidelines for Multinational Enterprises are the most comprehensive international public standard on all areas of CSR with 46 adherent governments. The unique feature of the Guidelines is its grievance mechanism. The National Contact Points for the OECD Guidelines serve as a complaints and problem solving mechanism for trade unions and NGO’s related to for example human rights and labor standards. Since 2011 the Guidelines apply not only to investments but also to global supply chains. The concept of CSR Due Diligence in the supply chains is now a key pillar of CSR.

In 2011, following his 2005 initial mandate of the UN Commission on Human Rights and his extended 2008 mandate of the UN Human Rights Council, the Special Representative of the Secretary-General (SRSG) on the issues of human rights and transnational corporations and other business enterprises, Professor John Ruggie, issued the final text of the ‘Guiding Principles for the Implementation of the United Nations “Protect, Respect and Remedy Framework”‘. The 2008 Framework on Business and Human Rights and the complementing 2011 Guiding Principles consist of three pillars: the duty of states to protect human rights, the responsibility of business enterprises to respect human rights, and access to remedies for victims of human rights abuses. They currently qualify as the dominant paradigm in the corporate social responsibility (CSR) discourse, also because they now form part of various soft law and self-regulation initiatives. The Framework and Guiding Principles do not, however, specifically focus on environmental issues, but their systematic approach and structure do provide a model to address state duties and business responsibilities to care of the environment. This article is intended to complement the UN Framework and Guiding Principles on business and human rights with principles in the field of business and the environment. Hence, it is submitted that states have a customary duty to care for the environment; it is similarly submitted that business enterprises have a responsibility to care for the environment; and it is submitted that stakeholders must have access to remedies in relation to breaches of these duties and responsibilities.

The Special Representative to the UN Secretary-General on human rights and transnational corporations and other business enterprises, John Ruggie, establishes access to remedy as one of the three pillars of the UN ‘Protect, Respect, Remedy’ Framework. In this Framework, Ruggie prescribes that company-based grievance mechanisms can be one effective means of enabling remediation to those potentially being impacted by business enterprises’ activities. This report proposes a model for company-based grievance mechanisms that follow a combination of interest-based and rights-compatible approaches to conflict resolution of all corporate social responsibility issues in company–stakeholder relationships.

Factors justifying not presuming innocence are generally incorporated into the Presumption of Innocence (PoI). A confusing discourse has resulted: numerous guilt-presuming acts are deemed consistent with the PoI. I argue for an unusually broad PoI: any act that might convey to a reasonable actor that he is not presumed innocent of a punishable offence constitutes a PoI interference. Thus, academic debate need only be about the question what PoI interferences are justifiable or unjustifiable. This question must be answered using pro- and anti-PoI values. I analyse three PoI interferences in relation to Duff’s retributivist punishment theory: presumptions of guilt, vicarious liability of car owners and coercing non-suspects into proving their sobriety. Retributivists tend to castigate such procedures based on their (supposed) consequentialist rationale. I argue, however, that they might also be justified on retributivist grounds. The retributivist anti-PoI duty to punish the guilty may be the worst enemy of innocents.

Conflict resolution has obtained the markings of a profession, including published journals, professional associations and academic programs. However, professional status also carries with it expectations and obligations upon which conflict resolution as a community should deliberate. Acknowledging conflict resolution as a profession highlights associated responsibilities around knowledge accumulation and ethical practice. Complexities of modern practice call for reuniting theory, research and practice, and updating our professional educational paradigm. Competent modern conflict resolution professionals must be able to innovate and adapt to novel and complex contexts, and must develop communities of inquiry for learning that is public, shared and cumulative. Because of the time constraints facing many professionals, and the lack of structure for reflection, a combination of direct community conversation and periodic journal review would likely be the most realistic for nurturing the needed reflection, continual learning and paradigm critique that results in system learning by the community of conflict resolution professionals.

This article is a personal reflection on the development of the field of conflict resolution/peace and conflict studies from the perspective of the classroom: how what is thought necessary to teach has changed as the field has grown and reacted to often turbulent political change

This article reviews the historical contingency of theory and practice in conflict engagement. World War II and the Cold War produced adversarial, distributive, competitive, and scarce resources conceptions of negotiation and conflict resolution, as evidenced by game theory and negotiation practice. More recent and more optimistic theory and practice has focused on party needs and interests and hopes for more party-tailored, contingent, flexible, participatory and more integrative and creative solutions for more than two disputants to a conflict. The current challenges of our present history are explored: continued conflict in both domestic and international settings, the challenge of “scaling up” conflict resolution theory and the problematics of developing universal theory in highly contextualized and diverse sets of conflict sites. The limits of “rationality” in conflict resolution is explored where feelings and ethical, religious and other values may be just as important in conflict engagement and handling.

This article concerns linguistic intractability, the verbal aspect of those conflicts that so far cannot be settled or transformed. At its heart lies the phenomenon of radical disagreement. This is generally discounted in conflict resolution as positional or adversarial debate. It is seen as a terminus to dialogue that must from the outset be transformed, not learnt from. In this article the refusal to take radical disagreement seriously is traced back to the way radical disagreement is described and explained in the third party theories that frame attempts at settlement and resolution in the first place.
On pp. 58-60 a theory of radical disagreement is contrasted with an example. In the theory radical disagreement is described as a juxtaposition of equivalent subjective narratives that do not ‘reflect truth’ but merely serve as ‘motivational tools’ for group survival. In the example, it can be seen that neither speaker is saying that. The Palestinian claim (A) is not about a subjective narrative or motivational tool, but about a lived reality endured for 60 years. And the Israeli claim (B) is not about a juxtaposition of equivalent accounts, but a fierce refutation of faults and misrepresentations in what the other says. This mismatch between third party theory and participant example explains a great deal about why third party interventions based on those theoretical assumptions fail.
The rest of the article looks at a range of putative theories invoked in conflict analysis and conflict resolution. This is a search for third party descriptions and explanations that are adequate to examples of what they purport to describe and explain. Surprisingly the net is hauled in empty. The interim conclusion to this article is that there is no adequate theory of radical disagreement.
In the first issue of the International Journal of Conflict Engagement and Resolution, this article sets the scene for an exploration of the relationship between engagement and resolution that it is hoped will be developed in future issues. It will be argued there that the practical implication of the discovery that there is no adequate theory of radical disagreement is that in intractable conflicts it is a mistake to ignore this phenomenon. Radical disagreement is not all too familiar but perhaps the least familiar feature of intense political conflict. What is required in the face of linguistic intractability, therefore, is not less radical disagreement but more – namely promotion of a ‘strategic engagement of discourses’. Only then is it possible to move from engagement to resolution and to create the space for a future revival of attempts at settlement and transformation in the linguistic sphere.

The news from the field of peace and conflict studies is mixed. It is evident that the increasing complexity, interdependence and technological sophistication of conflict, violence and war today introduce many new challenges to peace-keeping, making and building. However, it is also likely that these trends present new opportunities for fostering and sustaining peace. If our field is to capitalize on such prospects, it will need to more effectively understand and address several basic dilemmas inherent to how we approach our work. This paper outlines six contemporary challenges, and suggests some options for addressing them.

In Das Recht der Freiheit Axel Honneth develops his concept of social freedom. In this article I discuss Honneth’s project and critique one of its crucial aspects: Honneth’s views on the disruptive role of legal freedom in our society and its dependent relation to the sphere of social freedom. I argue that in his attempt in Das Recht der Freiheit to reactualize Hegel’s discourse on the realization of freedom for our time, Honneth risks mistranslating Hegel’s discourse of ‘right’ by denying the sphere of legal relations a constitutive role for true freedom, and that because of this Honneth’s own theory of social freedom suffers: it becomes less clear whether it can still offer helpful insights into the proper place of legal freedom in our society.

As we move towards constructing narratives regarding the future outlook of global governance, constitutionalisation among them, the hope is that whatever shape this world order takes it will, somehow, forestall or hinder the possibility of a hegemonic order. This article tries to deconstruct the notion of hegemony and claims that as it currently stands it is useless in doing its critical work since every successful narrative will end up being hegemonic because it will employ the ‘hegemonic technique’ of presenting a particular value (or value system), a particular viewpoint, as universal or at least applying to those who do not share it. The only way for a narrative in this discourse not to be hegemonic would be for it to be either truly universal and find a perspective that stems from nowhere and everywhere – a divine perspective – or purely descriptive; the first being an impossibility for fallible beings and the other not worth engaging with since it has nothing to say about how things should be structured or decided in a specific situation.

This article presents the current and future statutory framework for ratings agencies in Europe. The recent financial and economic crises dealt a fatal blow to this practice and the EU clearly intends to progress as quickly as possible when it comes to the regulation of credit rating agencies. This article examines the possibility that new EU framework serve to strengthen the position of credit rating agencies through the elimination of their unquestioned role in the markets. The author also presents existing and future European regulations and analyses the establishment and implementation of prudential supervision of the rating activity.