Search result: 16 articles

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Year 2015 x

    This article captures current trends in online dispute resolution (ODR) and its potential use in Ireland by analysing Irish practitioners’ current attitudes to and awareness of ODR. Ultimately, this work provides the groundwork for future research into Ireland’s use of ODR. This exploratory research will hopefully guide researchers in understanding ODR’s users and consumption.
    Data collection came from an online questionnaire sent to conflict intervention practitioners in Ireland who reported their experiences and perspectives of ODR. One hundred and twenty-four surveys were used in this analysis. These questionnaires produced both quantitative and qualitative data. Approximately 900 people were asked to complete the survey.
    The author found that surveyed participants were sceptical regarding ODR, with very few actually using online technologies to aid in resolving disputes. A popular sentiment among participating practitioners was that ODR was not better than face-to-face meetings, but that it was worth exploring further. Finally, the author found that those who had heard of ODR are more likely to believe they could assist parties in reaching a final settlement by using video technology.


Simon J. Boehme
Conflict Resolution Specialist for Martin F. Scheinman, Esq., Mitchell Scholar at Maynooth University in Ireland, Truman Scholar and Merrill Presidential Scholar at Cornell University’s ILR School in Ithaca, NY. <www.simonboehme.com>.
Article

Delegated Legislation in Nigeria: The Challenges of Control

Journal European Journal of Law Reform, Issue 3 2015
Keywords delegated legislation, parliament, control, quality, parliamentary scrutiny
Authors Jemina Benson LL.M
AbstractAuthor's information

    In considering how society generally is regulated, most times focus is always on Acts of parliament that are passed by the legislative arm of government. However, delegated legislation is another aspect of law making that is of immense importance for the regulation of any given society. This form of lawmaking being a deviation from the norm has some challenges in terms of control. This article seeks to examine some of these challenges emphasising that adequate parliamentary scrutiny will prevent the harbouring of bad-quality legislation.


Jemina Benson LL.M
Jemina Benson LL.M (University of London) is a legislative drafter for Rivers State House of Assembly in Nigeria. Email: jeminabenson@yahoo.com.
Article

Transformative Experience, Conflict Resolution and Sustained Dialogue

Journal International Journal of Conflict Engagement and Resolution, Issue 2 2015
Keywords conflict resolution, transformation, attitude change, adult learning, sustained dialogue
Authors Philip D. Stewart and Nissa Shamsi
AbstractAuthor's information

    The roots of conflict, whether international, community or interpersonal, are most often expressed in antagonistic attitudes or perspectives towards ‘the other’. Such attitudes frequently are deeply embedded and resistant to change. Yet lasting resolution of conflict is difficult, if not impossible, unless such attitudes of hatred, mistrust and anger can be addressed. This article begins with insights from science that shows that transformation of such perceptions under certain circumstances can occur. We then describe a well-tested but little known approach to conflict resolution whose design embodies these insights to transform conflicted relationships into more constructive ones. It is only through such transformation of perceptions, attitudes and relationships that the parties themselves become capable of constructively dealing with the economic, social and political issues in the conflict. This approach is called Sustained Dialogue. Sustained Dialogue has its roots in a high-level, U.S.–Soviet, now U.S.–Russia, dialogue, known as the Dartmouth Conference, which first met at Dartmouth College in 1960 and held its 137th session in October 2015. Its focus on transformation of relationships enables Sustained Dialogue to be effective in addressing a very wide range of conflicts, from a civil war in Tajikistan, to tensions between Israeli Arabs and Jews, to ethnic and racial tensions on 60 college campuses around the world and to intracommunity and intrainstitutional conflicts. Sustained Dialogue identifies five components of relationship: identity, interests, power, perceptions, misperceptions and stereotypes, as well as patterns of interaction. Moderators use these five elements not only to understand the nature of a conflict but also to guide the dialogue in ways that encourage transformative experiences. This takes time and occurs throughout the five stages of the process: deciding to engage, mapping relationships and naming problems, probing problems and relationships, scenario building as well as acting and learning together. The Sustained Dialogue Institute in Washington DC trains and encourages the use of this method. To provide the reader with a fuller sense of what this transformation process looks like and some of the results achieved, this article concludes with several illustrations from various kinds of conflicts.


Philip D. Stewart
Philip D. Stewart is Professor (Emeritus) at the Ohio State University.

Nissa Shamsi
Nissa Shamsi is a recent college graduate and former research assistant at the Sustained Dialogue Institute.
Article

Accountability for Forced Displacement in Democratic Republic of Congo and Uganda before the International Criminal Court

Journal African Journal of International Criminal Justice, Issue 2 2015
Keywords Forced displacement, International Criminal Court, Uganda, Democratic Republic of Congo, reparations
Authors Luke Moffett
AbstractAuthor's information

    This article examines the challenges of investigating and prosecuting forced displacement in the Central African countries of Democratic Republic of Congo and Uganda, where higher loss of life was caused by forced displacement, than by any other. In the Democratic Republic of Congo, armed groups intentionally attacked civilian populations displacing them from their homes, to cut them off from food and medical supplies. In Northern Uganda, the government engaged in a forced displacement policy as part of its counter-insurgency against the Lord’s Resistance Army, driving the civilian population into “protected villages”, where at one point the weekly death toll was over 1,000 in these camps. This article critically evaluates how criminal responsibility can be established for forced displacement and alternative approaches to accountability through reparations.


Luke Moffett
Lecturer and Director of the Human Rights Centre, Queen’s University Belfast, l.moffett@qub.ac.uk.

Nikolett Papp
PhD student, University of Debrecen, Géza Marton Doctoral School of Legal Studies.
Article

Access_open Corporate Social Responsibility via Shareholders’ Proposals

Journal The Dovenschmidt Quarterly, Issue 1 2015
Keywords corporate social responsibility, shareholders, Rule 14a-8, social proposals, strategy
Authors Maria Paz Godoy Uson
AbstractAuthor's information

    Can shareholders’ proposals be considered as a mainstream alternative to incorporate social and environmental policies into the core businesses strategy? Proposing non-financial resolutions at the general meeting of shareholders is a form of shareholders’ activism that is shaping company’s direction. The American court case Lovenheim v. Iroquois Brands, Ltd. confirms that social and environmental issues, when significantly related to the core business, can give rise to new business directions firmly promoted by shareholders, resting authorial power to the board of directors in conducting the company’s direction. The US SEC Rule 14a-8 is widely used by social activists and institutional investors to influence the direction of business in becoming more sustainable. In virtue of the American Rule 14a-8, shareholders may include proposals in the company’s proxy materials and, thereby, compel a vote on the issue at the annual shareholders’ meeting. The result is that American shareholders’ proposals are being considered as an effective gateway to improve corporations’ social and environmental behaviour. This article examines, from a comparative perspective, the further developments of shareholders’ social proposals with the attempt to incorporate social and environmental policies into the core business. The article also suggests that the increasing demand of social proposals promoted by American shareholders versus the limited activity of shareholders’ proposals in Continental European jurisdictions is precipitating the process of converge between the main corporate governance models; the shareholder-oriented model and the stakeholder-oriented model, respectively. The issue of CSR via shareholders’ proposals as presented here is primarily based on literature and various cases related to SEC 14a-8, more in particular on lessons drawn from Lovenheim v. Iroquois Brands, Ltd.


Maria Paz Godoy Uson
PhD Fellow Maastricht University.

    The paper aims at justifying an interpretation of Dworkin’s theory of Law as Integrity that brings it closer to philosophical pragmatism despite his rejection of legal pragmatism. In order to achieve this aim, this work employs a classification of philosophical commitments that define pragmatism in a broad and in a narrow sense and shows that legal pragmatism follows the main thinkers of pragmatism in the narrow sense in committing to instrumentalism. The attribution of a pragmatist character to Dworkin’s theory of law rests on the idea that the adoption of a commitment to instrumentalism is not implicated by its adoption of other pragmatist commitments.


Thiago Lopes Decat
Thiago Lopes Decat, Ph.D., is Adjunct Professor at the Department of Propedeutic and Critical Disciplines of the Faculdade de Direito Milton Campos, Nova Lima, Brazil.

    To ensure its continued viability, the International Criminal Court must find “practical” ways to appeal to its African (and global) audience, options that do not require substantial additional funding or revisions to the Rome Statute while remaining true to fundamental principles of international justice. Subject to such limitations, this article examines the “end product” of the ICC – the judgments authored by the Trial Chambers to date. Unfortunately, these opinions are simply incomprehensible to any but a few specially trained, highly interested stakeholders. They are extraordinarily complex and lengthy and fail to emphasize or address issues that are clearly important to the audiences in states where atrocities have occurred. The article reviews existing judgments and provides suggestions for future improvements, thereby increasing accessibility to African leadership, civil society organizations, and the public at large. Such efforts will contribute to increased legitimacy and, consequently, the long-term impact and relevancy of the Court.


Matthew C. Kane
Matthew C. Kane is a Visiting Assistant Professor at the University of Oklahoma College of Law, teaching courses on criminal law, torts, and international and comparative criminal law. He also serves a director and shareholder of Ryan Whaley Coldiron Jantzen Peters & Webber PLLC, concentrating on criminal and complex civil law matters. Special thanks to The Hague University of Applied Sciences, which organized the conference “Africans and Hague Justice,” where this paper was originally presented.
Article

Access_open The Casuistry of International Criminal Law: Exploring A New Field of Research

Journal Netherlands Journal of Legal Philosophy, Issue 2 2015
Keywords international criminal law, judicial reasoning, casuistry, genocide
Authors Marjolein Cupido
AbstractAuthor's information

    International criminal courts have made an important contribution to the development of international criminal law. Through case law, the courts have fine-tuned and modernized outdated concepts of international crimes and liability theories. In studying this practice, scholars have so far focused on the judicial interpretation of statutory and customary rules, thereby paying little attention to the rules’ application in individual cases. In this article, I reveal the limitations of this approach and illustrate how insights from casuistry can advance international criminal law discourse. In particular, I use the example of genocide to show that casuistic case law analyses can help scholars clarify the meaning of the law and appraise the application of substantive legal concepts in individual cases. Based on these observations, I argue that scholars should complement their current research with studies into the casuistry of international criminal law.


Marjolein Cupido
Marjolein Cupido is Assistant Professor at the Department of Criminal Law at VU University Amsterdam and fellow of the Center for International Criminal Justice.

Sumara M. Thompson-King
General Counsel, National Aeronautics and Space Administration (NASA), United States

Robin J. Frank
Acting Associate General Counsel for International Law, National Aeronautics and Space Administration (NASA), United States
Article

Exploring Barriers to Constructing Locally Based Peacebuilding Theory

The Case of Northern Ireland

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2015
Keywords peacebuilding, phronesis, civil society, practice–theory, Northern Ireland
Authors Emily Stanton PhD and Grainne Kelly
AbstractAuthor's information

    This article seeks to explore why, after significant financial investment and a history of nearly 50 years of civil society activity, there is a paucity of explicitly codified and consolidated indigenous theory that has emerged from peacebuilding practice in Northern Ireland. Methodologically, this apparent contradiction is explored, utilizing both empirical research (interviews with key peacebuilders) and the wide practitioner experience of the authors. It is argued that two complex dynamics have contributed to the subordination of local practice-based knowledge, namely, the professionalization of peace and the dominance of research over practice within academia. These two dynamics have played a mutually exacerbatory and significant role in creating barriers to constructing local peacebuilding theory. Phronesis, an Aristotelian term for practical knowledge, is explored to discover what insights it may contribute to both research, theory and practice in the field of peacebuilding, followed by examples of institutions demonstrating its value for practice–theory reflexivity. The article concludes with a call for peace research that validates and values practical knowledge. By doing so, the authors argue, new avenues for collaborative partnership between practitioners and academics can open up, which may play a constructive role in bridging practice–theory divides and, most importantly, contribute to building more effective and sustainable peacebuilding processes in Northern Ireland and in other conflict contexts.


Emily Stanton PhD
Emily Stanton is PhD candidate in the School of Politics, Faculty of Social Science, Ulster University, Northern Ireland. Email: Stanton-E@email.ulster.ac.uk.

Grainne Kelly
Grainne Kelly is Lecturer of Peace and Conflict Studies at the International Conflict Research Institute (INCORE), Ulster University, Northern Ireland. Email: g.kelly@ulster.ac.uk.
Article

Process Pluralism in Transitional-Restorative Justice

Lessons from Dispute Resolution for Cultural Variations in Goals beyond Rule of Law and Democracy Development (Argentina and Chile)

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2015
Keywords transitional justice, conflict resolution, process pluralism, cultural variation, individual and collective justice
Authors Carrie Menkel-Meadow
AbstractAuthor's information

    This article reviews some of the key issues in transitional justice process and institutional design, based on my research and experience working and living in several post-conflict societies, and suggests that cultural and political variations in transitional justice design, practices, and processes are necessary to accomplish plural goals. The idea of process pluralism, derived from the more general fields of conflict resolution and ‘alternative dispute resolution’ in legal contexts, is an essential part of transitional justice, where multiple processes may occur simultaneously or in sequence over time (e.g. truth and reconciliation processes, with or without amnesty, prosecutions, lustration and/or more local legal and communitarian processes), depending on both individual and collective preferences and resources. Transitional justice is itself ‘in transition’ as iterative learning has developed from assessment of different processes in different contexts (post-military dictatorships, civil wars, and international and sub-national conflicts). This article draws on examples from Argentina’s and Chile’s emergence from post-military dictatorships to describe and analyze a plurality of processes, including more formal governmental processes, but also those formed by civil society groups at sub-national levels. This article suggests that ‘democracy development’ and legalistic ‘rule of law’ goals and institutional design may not necessarily be the only desiderata in transitional justice, where more than the ‘legal’ and ‘governmental’ is at stake for more peaceful human flourishing. To use an important concept from dispute resolution, the “forum must fit the fuss”, and there are many different kinds of ‘fusses’ to be dealt with in transitional justice, at different levels of society – more than legal and governmental but also social, cultural and reparative.


Carrie Menkel-Meadow
Carrie Menkel-Meadow is Chancellor’s Professor of Law and Political Science, University of California, Irvine.

    Those who talk can be heard. Those who are allowed to talk may be listened to. This study is an attempt to give legal voice to those who cannot talk or are usually not listened to: children. This study is about the attention given to their interests, the best interests of the child. When these interests are immersed in a minority context, children may be overlooked for different reasons, including discriminatory attitudes or prejudice regarding their families. Law and its interpretation must be changed in order to include the difference. This study discusses the best interests of the child principle with special attention to its legal relevance in cases where lesbians, gays, bisexual and transgender (LGBT) are, or want to be, parents. The authoritative source for the interpretation of the principle is the United Nations (UN) Convention on the Rights of the Child (CRC). The analysis focuses on the European Court of Human Rights (ECtHR) and its case law. The study aims to explore the Court’s approach to the best interest of the child and identify whether the principle is being consistently applied in cases involving LGBT families, given the fact that sexual orientation and gender identity are still sensitive issues in Europe. This is done by comparing these cases to cases lodged by applicants who were not identified as an LGBT person. The margin of appreciation doctrine and the lack of European consensus on sexual minorities’ rights are confronted with the urgent paramount consideration that has to be given to children’s best interests. The analysis explores whether there is room for detecting a possible Court’s biased approach towards the concept of the best interests of the child. This study challenges the Court’s decisions in the sense that the focus should not only be at the LGBT parents’ rights to private and family life, but also at the interests of their daughters and sons. This is an attempt to call upon the ECtHR and all states not only to actively fight discrimination against LGBT persons, but, ultimately, to stop interpreting the concept of the best interests of the child in an arguably biased way, and to consider the principle’s legal value in any decision, regardless of their parents’ sexual orientation, gender identity or any other distinction.


Mr. Gabriel Alves de Faria
Gabriel Alves de Faria is a Brazilian lawyer, LGBTI activist and human rights specialist who holds a Law degree from the Federal University of Espirito Santo and a European Master’s Degree in Human Rights and Democratisation (E. MA/EIUC - Utrecht University). Among other legal and social experiences in the human rights field, Gabriel has worked as a researcher in comparative sexual orientation Law at Leiden University and most recently as a Fellow and consultant lawyer at the LGBTI Rapporteurship of the Inter-American Commission on Human Rights in Washington, DC. His latest project is a documentary on the situation of LGBTI persons in Southeast Asia.

    The article takes as its point of departure some of the author’s multidisciplinary projects. Special attention is given to the question of whether the disciplines united in the various research team members already constituted a kind of ‘inter-discipline’, through which a single object was studied. The issue of how the disciplinary orientations of the research team members occasionally clashed, on methodological issues, is also addressed.
    The outcomes of these and similar multidisciplinary research projects are followed back into legal practice and academic legal scholarship to uncover whether an incorporation problem indeed exists. Here, special attention will be given to policy recommendations and notably proposals for new legislation. After all, according to Van Dijck et al., the typical role model for legal researchers working from an internal perspective on the law is the legislator.
    The author concludes by making a somewhat bold case for reverse incorporation, that is, the need for (traditional) academic legal research to become an integral part of a more encompassing (inter-)discipline, referred to here as ‘conflict management studies’. Key factors that will contribute to the rise of such a broad (inter-)discipline are the changes that currently permeate legal practice (the target audience of traditional legal research) and the changes in the overall financing of academic research itself (with special reference to the Netherlands).


Annie de Roo
Erasmus School of Law, Erasmus University Rotterdam.

    The doctrinal methodology is in a period of change and transition. Realising that the scope of the doctrinal method is too constricting, academic lawyers are becoming eclectic in their use of research method. In this transitional time, legal scholars are increasingly infusing evidence (and methods) from other disciplines into their reasoning to bolster their reform recommendations.
    This article considers three examples of the interplay of the discipline of law with other disciplines in the pursuit of law reform. Firstly the article reviews studies on the extent of methodologies and reformist frameworks in PhD research in Australia. Secondly it analyses a ‘snapshot’ of recently published Australian journal articles on criminal law reform. Thirdly, it focuses on the law reform commissions, those independent government committees that play such an important role in law reform in common law jurisdictions.
    This examination demonstrates that while the doctrinal core of legal scholarship remains intact, legal scholars are endeavouring to accommodate statistics, comparative perspectives, social science evidence and methods, and theoretical analysis, within the legal research framework, in order to provide additional ballast to the recommendations for reform.


Terry Hutchinson
Associate Professor, Faculty of Law, QUT Law School (t.hutchinson@qut.edu.au); Marika Chang (QUT Law School) was the research assistant on this project.
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