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Vol 21 No 10 Oct/Nov 2016

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Formalisation and Flexibilisation in Dispute Resolution

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Edited by: Joachim Zekoll

ISBN13: 9789004281165
Published: September 2014
Publisher: Brill Nijhoff
Country of Publication: The Netherlands
Format: Hardback
Price: £140.00



Despatched in 11 to 13 days.

Formal law versus informal justice – these are two frequently invoked labels to highlight the distinction between court-based and “alternative” dispute resolution (ADR). Indeed, it appears to be all but a truism to assume that ADR has developed as a more flexible and creative alternative to rigid and formalised judicial proceedings. In Formalisation and Flexibilisation in Dispute Resolution scholars from four continents examine both historical and recent developments that cast doubt on the validity of these widespread assumptions. They not only explore trends towards an increased formalisation of ADR procedures but also address the tendencies of state civil justice systems to adopt flexible and informal tools for the resolution of disputes in the courts.

Editors Joachim Zekoll, Moritz Bälz and Iwo Amelung have divided the book into three Parts. Part One seeks to develop the general theme of formalisation from several angles, including a socio-legal perspective, the public-private divide, the regulatory challenges and potential tensions with the rule of law. The emphasis of Part Two is on the historical emergence of formal and informal dispute resolution instruments in several legal and cultural contexts. Historical roots, be they genuine or construed, also play a role in the other two parts of the book, but in this part, they take centre stage. Finally, Part Three features chapters which address and elaborate on specific applications such as ADR as means of consumer dispute resolution and arbitration in transnational investment disputes. While the contributions to the first two parts of this volume already raise normative questions in some respects, this final part evaluates and passes judgement on the potential merits and deficits of ADR in a variety of specific settings.

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Subjects:
Arbitration and Dispute Resolution
Contents:
INTRODUCTION
THE CHANGING FACE OF DISPUTE RESOLUTION
JOACHIM ZEKOLL, MORITZ BÄLZ & IWO AMELUNG

PART I: The Theme in General

CHAPTER 1: FORMALISATION OF ALTERNATIVE DISPUTE RESOLUTION PROCESSES: SOME SOCIO-LEGAL THOUGHTS
MICHAEL J.E. PALMER

CHAPTER 2: THE PRIVATE IN PUBLIC, THE PUBLIC IN PRIVATE: THE BLURRING BOUNDARY BETWEEN PUBLIC AND PRIVATE DISPUTE RESOLUTION
DEBORAH R. HENSLER

CHAPTER 3: CHINA’S DISPUTE-RESOLUTION MECHANISMS AND INNOVATION IN THE TRANSFORMATION ERA
YUJUN FENG AND XIAOLONG PENG

CHAPTER 4: MEDIATION AND THE RULE OF LAW: THE CHINESE LANDSCAPE
HUALING FU

CHAPTER 5: NO ALTERNATIVE: RESOLVING DISPUTES JAPANESE STYLE
ERIC A. FELDMAN

PART II: Formalisation and Flexibilisation – Historical Perspectives

CHAPTER 6: JUDICIAL DISPUTE RESOLUTION AND ITS MANY ALTERNATIVES: THE NORDIC EXPERIENCE
PIA LETTO-VANAMO
CHAPTER 7: “EXPLAINING” AND “MEDIATING” IS MORE IMPORTANT THAN PENALTIES:
A COMPREHENSIVE EXPLANATION OF THE RESOLUTION OF MINOR CASES AT COUNTY LEVEL IN LATE-IMPERIAL CHINA (1368-1911)
JIANG YU

PART III: Specific Applications and Normative Considerations

CHAPTER 8: THE DIVERSIFICATION AND FORMALISATION OF ADR IN JAPAN: THE EFFECT OF ENACTING THE ACT ON THE PROMOTION OF THE USE OF ALTERNATIVE DISPUTE RESOLUTION
KOTA FUKUI

CHAPTER 9: IN/FORMALISATION AND GLOCALISATION OF INTERNATIONAL COMMERCIAL ARBITRATION AND INVESTMENT TREATY ARBITRATION IN ASIA
LUKE NOTTAGE

CHAPTER 10: INFORMALISM AND FORMALISM IN THE HISTORY OF ADR IN THE UNITED STATES AND AN EXPLORATION OF THE SOURCES, CHARACTER, AND IMPLICATIONS OF FORMALISM IN A COURT-SPONSORED ADR PROGRAMME
WAYNE BRAZIL

CHAPTER 11: UNLOCKING JUSTICE AND MARKETS: THE PROMISE OF CONSUMER ADR
CHRISTOPHER HODGES

CHAPTER 12: PRIVATE LAW ENFORCEMENT AND ADR: AN ARRANGED MARRIAGE
GERHARD WAGNER

INDEX