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Article

E-Commerce, ICTs and Online Dispute Resolution: Is This the Beginning of a New Professional Profile?

Journal International Journal of Online Dispute Resolution, Issue 2 2015
Keywords Mobile phones, ADR, ODR, mediation, conflict resolution
Authors Aura Esther Vilalta and Rosa Pérez Martell
AbstractAuthor's information

    There is a close link between the growth of Internet usage, the development of mobile technology, the expansion of markets and the increasing number of online dispute resolution mechanisms (ODRs). This article seeks to start a conversation about the need to provide justice by means of effective mechanisms, in particular for e-commerce disputes and transnational litigation. It also provides some information on the recent international initiatives towards the regulation of this new arena, and concludes with an early approach to the future challenges and the impact on training, qualifications and expertise of ODR professionals and service providers.


Aura Esther Vilalta
Senior Lecturer in Civil Law at the Universitat Oberta de Catalunya (UOC), Barcelona, Spain. Fellow of the National Center of Technology and Dispute Resolution (NCTDR), University of Massachusetts – Amherst; CEO of Iusmediare, mediator and arbitrator. Vilalta has been Spanish national representative at UNCITRAL, WG III (Online Dispute Resolution) and Deputy Magistrate in the Barcelona Court of Appeals.

Rosa Pérez Martell
Senior Lecturer in Procedural Law at Las Palmas de Gran Canaria University, lecturer at the Open University of Catalonia and member of the Mediation Commission at the Gran Canaria Government.
Article

A Hungarian E-Learning Initiative and Its Implications

Journal International Journal of Online Dispute Resolution, Issue 2 2015
Keywords e-learning, pedagogical skills, educational reforms, Hungary, online dispute resolution
Authors Peter Mezei and Benjamin G. Davis
AbstractAuthor's information

    The present article aims to introduce an innovative educational reform launched by the University of Szeged Faculty of Law. The e-learning initiative of the Szeged Law School offers a chance for both students and lecturers to set aside the traditional Prussian method of education used by the Hungarian professors. Such initiative might, however, have broader implications as well. As such, it can clearly help internationalizing legal education in Hungary and in its neighbouring countries, as well as serve as a great example for other international projects, like online dispute resolution programmes.


Peter Mezei
Dr. Peter Mezei is Associate Dean for Strategic Affairs and Associate Professor of Law at the University of Szeged Law School, Szeged, Hungary.

Benjamin G. Davis
Benjamin G. Davis is Professor of Law at the University of Toledo College of Law, Toledo, Ohio, USA, and Vice-Chair of the American Bar Association Section of Dispute Resolution.

Vikki Rogers
Assistant Dean for Online Programs, Pace Law School.
Article

13th Sir William Dale Memorial Lecture

Innovation and Continuity in Law Making

Journal European Journal of Law Reform, Issue 3 2015
Authors Richard Heaton
Author's information

Richard Heaton
First Parliamentary Counsel and First Secretary to the Cabinet Office.
Article

Structure of Legislation: A Paradigm for Accessibility and Effectiveness

Journal European Journal of Law Reform, Issue 3 2015
Keywords effectiveness of legislation, structure of legislation, accessibility of legislation, quality drafting, clarity
Authors Elohor Onoge
AbstractAuthor's information

    The aim of this article is to examine how the structure of legislation can nurture accessibility and effectiveness of legislation.
    It explores whether the legislative drafter in carrying out the task of drafting can nurture effective communication of the policy maker’s intent to the targeted audience by making use of the structure of legislation as a tool, to ensure the legislation is accessible to the end user, and foster effectiveness.
    The third and fourth stage of Thornton’s stages of the drafting process – design and composition – would be examined and also Peter Butt’s types of structure, which relates to the drafting of legal documents but would be applied in this paper, to the drafting of legislation.


Elohor Onoge
Elohor Onoge LLM is a Nigerian legislative drafter working for the Federal Parliament. Email: stephyrook@gmail.com.

    Statutory interpretation is quickly becoming the primary function of our courts. Ambiguity, unexpected scenarios, and drafting errors in legislation compound this challenging task, obliging many judges to turn to debate transcripts and other legislative materials in search of our elected representatives’ intent.
    Legislatures are intrinsically the products of the societies that create them, however, with each possessing a diverging structure and rules of procedure. These institutional differences affect bills’ drafting, consideration, and passage, and represent the mechanical process of how legislative bargains are translated into binding statutory text.
    Through the lenses of the United Kingdom Parliament and the United States Congress, the fundamental logic behind these institutions’ legislative bargains will be explored, assessing the impact of procedure and the interests that shape the enacting process. Parliamentary tradition emphasizes the foundational role of Her Majesty’s Government in managing virtually all legislation, maintaining a unity of purpose without compromise, amendment, or purposefully ambiguous provisions. Conversely, unique procedures and the multiplicity of veto players within Congress necessitates that compromise is a de facto requirement for passage. The diverging logic behind these legislative bargains offers powerful evidence that institutional characteristics have a dispositive impact on the utility of legislative materials in statutory interpretation.


Chris Land
Juris Doctor Student, 2016, University of Minnesota Law School. LL.M., with distinction, Institute of Advanced Legal Studies, University of London; B.S., summa cum laude, Florida State University.
Article

Tracing the Long-Term Impacts of a Generation of Israeli–Palestinian Youth Encounters

Journal International Journal of Conflict Engagement and Resolution, Issue 2 2015
Keywords encounters, Israel-Palestine, impact, peace building, dialogue
Authors Karen Ross and Ned Lazarus
AbstractAuthor's information

    Since the 1980s, thousands of Israeli Jews, Palestinian citizens of Israel and Palestinians from the occupied Palestinian territories (oPt) have participated in intergroup dialogues, often referred to as ‘encounter programmes’. In the same historical span, the Israeli–Palestinian conflict has proved thoroughly intractable. Given this political reality, what has been the impact of such initiatives, on direct participants and the conflict context? This article assesses the long-term impact by tracing the post-encounter peacebuilding activity and the evolving perspectives of former participants in three prominent encounter programmes – Seeds of Peace (SOP), Sadaka Reut (SR) and Peace Child Israel (PC) – over periods ranging from a few years to over two decades. Data is drawn from parallel studies conducted by each of the individual authors, encompassing research on 899 programme alumni. The article presents the results of complementary qualitative and quantitative analyses of the long-term peacebuilding engagement of graduates of these three programmes. The organizations profiled employ distinct methodologies, allowing for comparative analysis of interpersonal contact, social identity and critical theoretical approaches. The studies found 183 alumni – approximately one in five surveyed – active in peacebuilding and social change efforts as adults, often 10 or more years after initial participation in encounters. Crucially, long-term peacebuilding engagement was more common among alumni of programmes that explicitly address issues of intergroup conflict and social justice, as opposed to a ‘non-political’ cultural approach. Findings illustrate the potential of intergroup encounters to inspire sustained peacebuilding engagement at the individual level – even in a context of ongoing violent conflict – while highlighting dilemmas imposed by asymmetrical social contexts, and the limitations of micro-level strategies in effecting broader political change.


Karen Ross
Karen Ross is an Assistant Professor of Conflict Resolution at the University of Massachusetts-Boston, and a Senior Fellow at the UMASS Boston Center for Peace, Democracy and Development.

Ned Lazarus
Ned Lazarus is a Research Fellow at the Gildenhorn Institute for Israel Studies at the University of Maryland and a Program Officer at the Israel Institute.
Article

Indigenous Cultural Resources for Peacebuilding

Khan Abdul Ghaffar Khan’s Philosophy and Conflict in the Federally Administered Tribal Areas of Pakistan

Journal International Journal of Conflict Engagement and Resolution, Issue 2 2015
Keywords Islam, Khudai Khidmatghar, Taliban, Pakhtuns, liberal peacebuilding
Authors Saira Bano Orakzai
AbstractAuthor's information

    Indigenous peacebuilding has introduced numerous challenges to the approach of liberal peacebuilding that is well advocated around the world. The conflict in the Federally Administered Tribal Areas (FATA) of Pakistan presents one such challenge for the local peacebuilders – whereas the implementation of the liberal peacebuilding has failed. Adopting a subaltern perspective, this article examines indigenous cultural peacebuilding resources for this conflict. Prominent among these resources is the philosophy of non-violence and self-restraint of Khan Abdul Ghaffar Khan and his Khudai Khidmatgar non-violent movement. The article discusses Khan’s philosophy and the movement it inspired, while making a case for the value of such indigenous resources in the development of culturally appropriate responses for countering militancy and violence in FATA. The article uses the writings of Ghaffar Khan together with secondary resources to suggest measures to counter the contemporary violent extremism by the Taliban and draw upon indigenous approaches to make peacebuilding more effective in FATA.


Saira Bano Orakzai
Postdoctoral Fellow, Institute for Reconciliation and Social Justice, University of Free State, South Africa.
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

Redefining Success in Arab–Jewish Dialogue Groups

Learning to Live in Both Worlds

Journal International Journal of Conflict Engagement and Resolution, Issue 2 2015
Keywords peace building, shift, interethnic dialogue, success in dialogue, dialogue groups
Authors Nurete Brenner and Victor Friedman
AbstractAuthor's information

    Despite the ongoing debate about the effectiveness of intergroup dialogue for conflict resolution, there is surprisingly little conceptualization of what constitutes successful dialogue. On the basis of a qualitative analysis of three US-based Arab–Jewish dialogue groups, using phenomenological methods and a comparison of case studies, this article presents three main dimensions of success: (1) a shift among group members to ‘living in both worlds’, which means that participants learn to accept the others’ views while still maintaining their own; (2) expansion beyond the group boundaries to include people outside the group such as family members, the larger community members and others and (3) resilience, which means being able to stay in relationship with rival group members without necessarily resolving the conflict. These three dimensions, which are linked together, provide potential criteria for evaluating the effectiveness of dialogue groups. The concept of shift is discussed and refined and contrasted with the more general concept of change. Ideas around generalizability are discussed, and the concept of expansion or ‘rippling out’ is suggested instead. Finally, resilience rather than resolution is offered as one of the main objectives of a successful dialogue.


Nurete Brenner
PhD, Ursuline College, Cleveland, Ohio.

Victor Friedman
EdD, Action Research Center for Social Justice, Max Stern Yezreel Valley College, Yezreel Valley, Israel.
Article

Hybrid Peacebuilding in Northern Ireland and the Border Counties

The Impact of the International Fund for Ireland and the European Union’s Peace III Fund

Journal International Journal of Conflict Engagement and Resolution, Issue 2 2015
Keywords Northern Ireland, economic aid, elicitive approach, liberal peace, grass-roots everyday peacemakers
Authors Julie Hyde and Sean Byrne
AbstractAuthor's information

    This article draws upon a wide qualitative study of the experiences and perceptions held by 107 community group leaders and 13 funding agency development officers within the liminal context of Northern Ireland and the Border Counties. These organizations received funding from the European Union’s Peace III Program and/or the International Fund for Ireland. Semi-structured interviews were conducted with key figures in these groups and agencies during the summer of 2010. This data is explored in relation to the concept of hybrid peacebuilding so as to better identify and articulate the potentialities and challenges associated with grass-roots macro-level interactions. The empirical findings indicate the necessity of flexibility in empowering local decision makers in a hybridized peacebuilding process. Local people should be involved with the funders and the governments in constructing and in implementing these processes. The theoretical findings are consistent with previous research that favors elicitive and local rather than top-down bureaucratic and technocratic processes. More attention needs to be paid to how local people see conflict and how they build peace. The prescriptive/practical implications are that policymakers must include the grass roots in devising and implementing peacebuilding; the grass roots need to ensure their local practices and knowledge are included; and external funders must include local people’s needs and visions in more heterogeneous hybrid peacebuilding approaches. The article is original, providing grass-roots evidence of the need to develop the hybrid peacebuilding model.


Julie Hyde
Julie Hyde is a Ph.D. Candidate in peace and conflict studies at the University of Manitoba. Her research focuses on critical approaches to peacebuilding, peace education, and indigenous/non-indigenous relationships.

Sean Byrne
Sean Byrne is professor of peace and conflict studies and director of the Arthur V Mauro Centre for Peace and Justice, St. Paul’s College, University of Manitoba. He has published extensively in the area of critical and emancipatory peace building. He was a consultant to the special advisor to the Irish Taoiseach on arms decommissioning. He is a consultant on the Northern Ireland peace process to the senior advisor for Europe and Eurasia at the U.S. Senate foreign relations committee. His research was funded by SSHRC and the USIP.
Article

Corruption and Controls

Journal European Journal of Law Reform, Issue 4 2015
Keywords corruption, controls, inspections, administration, regulation
Authors Maria De Benedetto
AbstractAuthor's information

    Anti-corruption is a relatively recent policy which calls for controls. They represent the most effective means in rebalancing institutions which are not fully informed: ‘secrecy’, in fact, characterizes infringements and corrupt behaviour.
    Alongside criminal investigation, administrative controls and administrative investigation should be considered crucial because they intervene at early stages, when corruption has been developing, allowing real prevention.
    This article analyses some points that we should remember in order to connect controls and corruption correctly: first of all, controls have a hybrid nature: not only are they a way to combat or prevent corruption but also they are real occasions for corrupt transactions; furthermore, controls are a cost and administrative capacity of control is limited; moreover, planning controls is not a simple task; and finally, sanctions following controls must be effective in order to deter.
    The article also analyzes what is needed in matters of corruption controls, with special reference to good rules (aiming at a legal system with fewer but better rules, rules which work as incentives, rules capable of designing good institutions). There is also a need for good practices (in order to improve the understanding of corruption processes, to reduce controls, to cooperate in investigating cases of corruption).
    Finally, the article warns about the fact that corruption controls produce more bureaucracy and that early detection of corruption would mean, in this perspective, to make a diagnosis of ‘corruptibility’ starting from rules.


Maria De Benedetto
Full Professor, Roma Tre University.
Article

Commonalities in the English Tort and French Criminal Wrong of Defamation

Journal European Journal of Law Reform, Issue 4 2015
Keywords defamation, tort, crime, comparative, path dependence
Authors Mathilde Groppo
AbstractAuthor's information

    This article considers the extent to which the nature of the regulation – tortious or criminal – influences the substantive content of the rules in England and France. It argues that the English and French regulatory features are the result of path dependence. Consequently, while they have led to substantive differences, they do not prevent the emergence of a shared approach to the wrong.


Mathilde Groppo
PhD Candidate, King’s College London.
Article

Can Imprisonment Be Cheaper? The Case for Private Prisons

Journal European Journal of Law Reform, Issue 4 2015
Keywords costs, criminal law, law and economics, private prisons, privatization
Authors Elena Kantorowicz-Reznichenko
AbstractAuthor's information

    Custody is the most expensive method of punishment in the Western world, as compared to other alternatives. Although expensive, prison is an indispensible instrument to deal with judgement proof or dangerous offenders. Hence, by using the law and economics approach, this article explores prison privatization as an instrument for less expensive incarceration. This method has the potential to reduce the prison costs without hampering its quality. However, a restructuring of the current contracts is needed to achieve this purpose. The attention given to the topic of private prisons by the law and economics scholars, especially in the European context, is limited, and this article attempts to fill this gap. The present article applies arguments from the bureaucracy and political science literature to explain the inefficiencies of public prisons. Subsequently, the potential problems of private prisons are presented through the principle-agent model and solutions are offered.


Elena Kantorowicz-Reznichenko
Rotterdam Institute of Law & Economics (RILE), Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.

    This article explores the politics of international criminal justice and argues that the International Criminal Court is a lieu of staged performance where actors deploy their political narratives. Using the Situation in the Republic of Côte d’Ivoire before the ICC and focusing on the pre-trial phase, I contend that the defendants Laurent Gbagbo and Charles Blé Goudé project a performance and deploy political narratives that are the extension of the politics of the Ivorian crisis, which make the Court the quintessential arena where domestic and international politics cohabit with law and rules of procedure.


Oumar Ba
Oumar Ba is a PhD Candidate in the Department of Political Science at the University of Florida.
Article

Access_open Cutting Corners or Enhancing Efficiency?

Simplified Procedures and the Israeli Quest to Speed up Justice

Journal Erasmus Law Review, Issue 4 2015
Keywords Israel, austerity, civil procedure, simplified procedures, small claims
Authors Ehud Brosh
AbstractAuthor's information

    Israel was spared the worst of the world financial crisis of 2008-2009. However, austerity concerns are by no means invisible in the developments in the field of civil procedure. These concerns correlate heavily with the long-standing Israeli preoccupation with ‘speeding up’ justice. An array of simplified procedural tracks, aimed at addressing the perceived inadequacy of ‘standard’ procedure, have been developed in Israel over the years. The importance of simplified procedures in the Israeli system cannot be overestimated. Their development illustrates the dialectical tension between the values of ‘efficiency’ and ‘quality’ in the administration of justice. During periods of austerity, the scales are easily (or easier) tipped in favour of efficiency and general or particular simplification of procedure. In times of prosperity, on the other hand, concerns over ‘quality’, access to justice, and truth discovery predominate, and attempts at promoting efficiency and/or simplification at their expense tend to be bogged down. Such attempts also tend to lose their extrinsic legitimacy and are widely viewed as ‘cutting corners’. This is evident in the recent Israeli experience with civil procedure reform.


Ehud Brosh
Ehud Brosh, LL.M., is a research student at the Hebrew University of Jerusalem.
Article

Access_open Austerity’s Effect on English Civil Justice

Journal Erasmus Law Review, Issue 4 2015
Keywords Austerity, court fees and legal aid, adversarial and inquisitorial process, McKenzie Friends, simplified process
Authors John Sorabji
AbstractAuthor's information

    This article considers the effect of austerity-induced public spending cuts on the English civil justice system. In doing so it initially examines two fundamental changes engendered by the effect austerity has had on civil court fees and legal aid: first, a challenge to the traditional commitment in English procedure to adversarial process, and a concomitant increase in inquisitorial or investigative processes; and secondly, the growth in use of unqualified individuals to act as advocates in court for individual litigants who are unable to afford legal representation. It then turns to consider what, if any, effect austerity has had on simplified processes available in English civil procedure.


John Sorabji
DPhil, Senior Fellow, UCL Judicial Institute, University College, London, email: j.sorabji@ucl.ac.uk.
Article

Access_open Canadian Civil Justice: Relief in Small and Simple Matters in an Age of Efficiency

Journal Erasmus Law Review, Issue 4 2015
Keywords Canada, small and simple matters, austerity, civil justice, access to justice
Authors Jonathan Silver and Trevor C.W. Farrow
AbstractAuthor's information

    Canada is in the midst of an access to justice crisis. The rising costs and complexity of legal services in Canada have surpassed the need for these services. This article briefly explores some obstacles to civil justice as well as some of the court-based programmes and initiatives in place across Canada to address this growing access to justice gap. In particular, this article explains the Canadian civil justice system and canvasses the procedures and programmes in place to make the justice system more efficient and improve access to justice in small and simple matters. Although this article does look briefly at the impact of the global financial crisis on access to justice efforts in Canada, we do not provide empirical data of our own on this point. Further, we conclude that there is not enough existing data to draw correlations between austerity measures in response to the global crisis and the challenges facing Canadian civil justice. More evidence-based research would be helpful to understand current access to justice challenges and to make decisions on how best to move forward with meaningful innovation and policy reform. However, there is reason for optimism in Canada: innovative ideas and a national action plan provide reason to believe that the country can simplify, expedite, and increase access to civil justice in meaningful ways over the coming years.


Jonathan Silver
Jonathan Silver, B.A. Honors, J.D. 2015, Osgoode Hall Law School.

Trevor C.W. Farrow
Trevor C.W. Farrow is Professor and Associate Dean, Osgoode Hall Law School. He is very grateful to Jonathan Silver, who took the lead in researching and writing this article.

Xandra Kramer
Xandra Kramer is a professor at Erasmus School of Law, Erasmus University Rotterdam, and Deputy Judge at the District Court of Rotterdam.

Shusuke Kakiuchi
Shusuke Kakiuchi is a professor at the University of Tokyo.
Article

Access_open Relief in Small and Simple Matters in Belgium

Journal Erasmus Law Review, Issue 4 2015
Keywords Belgium, small matters, simple matters, recovery of unchallenged claims, summary order for payment
Authors Stefaan Voet
AbstractAuthor's information

    This article is based on a national report that was written for the XVth World Congress of the International Association of Procedural Law that was held in Istanbul in May 2015 and that focused on Effective Judicial Relief and Remedies in an Age of Austerity. It first of all sketches the general judicial context in Belgium and some of its relevant features: the judicial organisation, the goals of the civil justice system, the course of an ordinary civil lawsuit, the role of the court, and the litigation costs. Next, a detailed and critical overview of the current and future procedures that offer relief in small and simple matters is given. The current summary order for payment procedure, which was introduced in 1967, did not meet its goals. The article concludes that a new trend is emerging in Belgium, namely keeping small and unchallenged claims outside the judiciary and providing for cheaper and more efficient alternatives.


Stefaan Voet
Stefaan Voet is an Associate Professor of Law at the Katholieke Universiteit Leuven and a Visiting Professor at the Universiteit Hasselt.
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