Conclusion of a Settlement Agreement within the Framework of the Derivative Claim Proceedings

The paper discusses the procedural features of concluding a settlement in the claim involving a corporation-participant for compensation of losses caused by the bodies of a legal entity, and aimed at recognizing as invalid a transaction made by a corporation and applying the consequences of its invalidity on appropriate corporate grounds. The author critically evaluates the procedural order applied to the peaceful settlement of a dispute in an indirect claim, provided for under paragraph 32 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 23 June 2015 No. 25, in terms of the possibility of an independent conclusion of a settlement by a corporation-participant. The author justifies the necessity of obtaining the consent of the corporation for the legal entity participant to conclude a settlement. Particular attention is paid to considering the specifics of concluding a settlement in the event that other members of the corporation join an indirect claim. The paper demonstrates the procedural features of concluding an amicable settlement when considering an indirect claim according to the rules of the class proceedings. To conclude the study, the author dwells on the issue of the need for corporate approval of a settlement containing signs of a major transaction and (or) an interested party transaction concluded within the framework of an indirect claim.

Settlement Of Divorce Dispute Through The Forum Of Mediation In Judicial Institutions As An Effort Of Legal Protection For The Rights And Interests Of The Child Of Post-Divorce

Abstrak: Proses mediasi merupakan upaya alternatiif dalam menyelesaikan permasalahan pada aspek hukum keluarga terutama pada hak dan kepentingan anak-anak. Tujuan penelitian ini untuk dapat memastikan adanya perlindungan pada anak-anak akibat perceraian orang tuanya melalui jalur mediasi. Target khusus yang ingin dicapai dalam penelitian ini agar anak-anak korban perceraian tidak dirugikan akan hak-haknya. Metode dalam penelitian ini adalah penelitian hukum normative, setelah mengkaji sumber data yang didapatkan melalui kepustakaan juga menelaah hasil mediasi di Pengadilan Agama yang terdapat dalam Akta Perdamaian.Kata Kunci: mediasi, peradilan, Akta PerdamaianAbstract: The mediation process is an alternative effort in the family law, particularly in solving problems on the rights and interests of the child. The purpose of this research is to ensure the protection of children of divorced parents through mediation. The specific targets to be achieved in this study is that children as victims of divorce are not deprived of their rights. Normative legal research method is applied in examining the data obtained through literature review and also by examining the results of mediation in the Settlement Agreement at the Religious Courts.Keywords: Mediation, Judicial, Settlement Agreement

Hersch and Elihu Lauterpacht and the relevance of private law sources for international law: from theory to practice against the background of international law's evolution and the adoption of the Unidroit Principles

Private law sources in international law were a main object of study of Sir Hersch Lauterpacht, who is considered one of the greatest international lawyers of the last century. In his time, the International Institute for the Unification of Private Law’s Principles of International Commercial Contracts (PICC) did not exist. The first version of the PICC was only published in 1994, more than three decades after his death. In the year 2000, the disputing parties of an investment treaty arbitration case concluded before a tribunal chaired by his son, Sir Elihu Lauterpacht, a settlement agreement dated 20 March 2000, which would later be embodied in an International Centre for Settlement of Investment Disputes Additional Facility arbitral award issued by the tribunal on 18 September 2000, where they incorporated slightly modified PICC provisions. The present article will argue that private law sources are still important in certain areas of international law, such as investment arbitration. In investment arbitration, they are not only important in presence of contracts but they can also arguably be useful for the interpretation of treaties. Investment tribunals have indeed recognized the importance of the PICC for both the interpretation of contracts (transnational agreements) and the interpretation of treaties (international agreements).

Follow the Money: A Closer Look at US Tobacco Industry Marketing Expenditures

Introduction: While much of the concern with tobacco industry marketing has focused on direct media advertising, a less explored form of marketing strategy is to discount prices. Price discounting is important because it keeps the purchase price low and can undermine the impact of tax increases. Methods: We examine annual marketing expenditures from 1975 to 2019 by the largest cigarette and smokeless tobacco companies. We consider three categories: direct advertising, promotional allowances, and price discounting. In addition to considering trends in these expenditures, we examine how price discounting expenditures relate to changes in product prices and excise taxes. Results: US direct advertising expenditures for cigarettes fell from 80% of total industry marketing expenditures in 1975 to less than 3% in 2019, while falling from 39% in 1985 to 6% in 2019 for smokeless tobacco. Price-discounting expenditures for cigarettes became prominent after the Master Settlement Agreement and related tax increases in 2002. By 2019, 87% of cigarette marketing expenditures were for price discounts and 7% for promotional allowances. Smokeless marketing expenditures were similar: 72% for price promotions and 13% for promotional allowances. Price discounting increased with prices and taxes until reaching their currently high levels. Conclusions: While much attention focuses on direct advertising, other marketing practices, especially price discounting, has received less attention. Local, state and federal policies that use non-tax mechanisms to increase tobacco prices and restrict industry contracts with retailers are needed to offset/disrupt industry marketing expenditures. Further study is needed to better understand industry decisions about marketing expenditures.

CONCLUSION OF A SETTLEMENT AGREEMENT IN GROUP PROCEEDINGS

Within the framework of this study the author analyzes the procedural order for concluding a settlement agreement in group proceedings. Procedural features of concluding a settlement agreement considering disputes involving a large group of persons are highlighted. Particular attention is paid to the research of the legal nature of the application to join the group’s claim. It has been established that according to the procedural legislation in force, the issue of concluding a settlement agreement in cases aimed at protecting the rights and legitimate interests of a group of persons is decided independently by the person conducting the case. It has been revealed that as a result of law imperfection, the scope of a joint action agreement invocation in group proceedings tends to be unreasonably limited. The essentiality to expand this scope by extending it to the procedural order of concluding a settlement agreement is reasoned. It is substantiated that the legal regulation of the procedural order for concluding a settlement agreement in group proceedings in force needs further improvement. The author offers their own view of the procedural model of concluding a settlement agreement in group proceedings. In conclusion of the study, the author dwells on problematic aspects of concluding a settlement agreement, considering issues related to the possibility of concluding a settlement agreement by individual subgroups, individually interested members of the group, as well as issues related to the admissibility of concluding a settlement agreement with respect to future claims.

Participation of Third Parties not Making Independent Claims Regarding the Subject Matter of the Dispute in Civil Proceedings in the Light of Procedural Economy

The author explores the issue of participation of third parties not making independent claims regarding the subject matter of the dispute in the context of achieving procedural efficiency in civil proceedings. It is noted that the current rules of civil and arbitration procedural legislation concerning third parties that do not make independent claims regarding the subject matter of the dispute are imperfect and, on the one hand, they have some potential to ensure the true implementation of the principle of procedural economy, and, on the other hand, to enhance the effectiveness of civil proceedings and the scope of safeguards applied to secure judicial protection. Joint consideration and resolution of principal and recourse claims may be treated as a key and promising technique in this regard. The author, using various methodological techniques, conducts a critical analysis of the domestic doctrine and legislation of pre-revolutionary, Soviet and modern periods, and examines foreign experience on the subject at hand. The paper substantiates the conclusion about the possibility and expediency of joint consideration and resolution of the principal and recourse claims. It proposes to apply a mechanism for considering such claims jointly with due regard to the balance of interests of persons involved in the case. It is also noted that in a number of cases it is expedient to consider the principal and recourse claims in separate court proceedings. Summing up, the author expresses the opinion that the expansion of the judicial activity of the judicial activity should be permissible not only in the case of approval by the court of the settlement agreement, but also when the judicial activity results in making a court decision. In conclusion, it is noted that the mechanism of joint consideration and resolution of principal and recourse actions proposed by the author does not infringe the safeguards of civil procedural form and allows us to eliminate “defeat in rights” for the principal respondent (regredient).

Investor-State Conciliation and Mediation

Conciliation and mediation have great potential to resolve investor-State disputes. Nonetheless, arbitration has significantly overshadowed these two forms of amicable dispute settlement processes. This disparity is slowly changing, and, in recent times, interest has grown in conciliation and mediation, particularly given the duration, complexity, and cost of investor-State arbitrations, as well as concerns as to the substantive content of investor-State arbitral decisions. No clear consensus has emerged regarding the precise definition of either conciliation or mediation. Given the substantial overlap between the two processes, they have often been referred to as functionally equivalent and interchangeable. The best way to identify conciliation or mediation is through close examination of the particular set of rules and practices at issue. But the two dispute settlement mechanisms are generally distinguishable. At its core, conciliation involves a sole conciliator or conciliation commission considering the respective positions of the disputing parties and making nonbinding recommendations for settlement. Conciliation rules typically have flexibility to accommodate other mediation techniques that share the same purpose and may require a conciliator or conciliation commission to produce a written evaluation of the parties’ respective legal positions. In comparison, mediation is a process in which a mediator (1) assists the parties to focus on their real interests rather than legal rights, (2) generally avoids making any merits-based evaluation of parties’ positions, and (3) facilitates a meaningful dialogue between the parties to reach an amicable settlement. Unlike arbitration, in which the disputing parties have no certainty over the arbitrators’ binding decisions, the success of both conciliation and mediation depends on the willingness and cooperation of the parties to reach a voluntary and agreed settlement. A settlement agreement resulting from a mediation or conciliation process may potentially be enforced under domestic laws or in states that have ratified the Singapore Convention on Mediation, an innovation in international dispute resolution that may increase interest in investor-State conciliation and mediation. The UNCITRAL Working Group III is presently considering whether and how to promote conciliation, mediation, and other alternative dispute resolution (ADR) mechanisms in reforms to the present system of investor-State dispute settlement.

KEDUDUKAN AKTA NOTARIS DALAM PENYELESAIAN SENGKETA PENGHAPUSAN MEREK DI LUAR PENGADILAN [THE POSITION OF NOTARIAL DEED IN AN OUT OF COURT DISPUTE SETTLEMENT OF NON-USE TRADEMARK CANCELLATION]

<p><em>Recently, various types of disputes can arise in the community. In resolving these disputes, the disputing parties are given the freedom to choose the dispute resolution forum according to their wishes. Non-court dispute resolution schemes are strengthened by Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution. Juridically, the mechanism of brand dispute resolution can be done through litigation in the Commercial Court, as well as non-litigation by using an alternative mechanism for dispute resolution, either through arbitration, negotiation, mediation, conciliation, or other ways agreed upon by both parties of the dispute. The final result of the parties' dispute settlement agreement is resolution which is poured into a form of peace treaty made before a Notary. To see the position of the notarial deed in resolving disputes over brand deletions outside court, especially in the dispute over the "X" trademark between PT CPS and the inheritors of HK’s trademark, research is needed on the certainty of the enforceability and power to bind a peace agreement made before a Notary. In this study, the type of research used is normative legal research with law and case approach. From the result of this study, it can be concluded that the peace agreement between the parties was made in the form of a deed of peace before the Notary and binds the parties as a law for the parties and has perfect proof power.</em><strong><em> </em></strong></p><p><strong><em></em></strong><strong>BAHASA INDONESIA ABSTRACT: </strong>Dewasa ini berbagai macam sengketa dapat timbul dalam masyarakat. Dalam menyelesaikan sengketa, para pihak yang bersengketa diberi kebebasan untuk memilih forum penyelesaian sengketa sesuai dengan keinginannya. Skema penyelesaian sengketa di luar pengadilan diperkuat oleh Undang-Undang Nomor 30 Tahun 1999 tentang Arbitrase dan Alternatif Penyelesaian Sengketa. Secara yuridis, mekanisme penyelesaian sengketa merek dapat dilakukan melalui litigasi di Pengadilan Niaga atau non litigasi dengan menggunakan mekanisme alternatif penyelesaian sengketa, baik melalui arbitrase, negosiasi, mediasi, konsiliasi, maupun cara-cara lain yang dipilih oleh para pihak yang bersengketa. Hasil akhir dari kesepakatan penyelesaian sengketa para pihak adalah perdamaian yang dituangkan ke dalam bentuk akta perdamaian yang dibuat di hadapan Notaris. Untuk melihat kedudukan akta Notaris dalam penyelesaian sengketa penghapusan merek di luar pengadilan, khususnya dalam sengketa merek “X” antara PT CPS dan ahli waris almarhum HK, diperlukan penelitian mengenai kepastian keberlakuan dan kekuatan mengikat perjanjian perdamaian yang dibuat di hadapan Notaris. Dalam penelitian ini, jenis penelitian yang digunakan adalah penelitian hukum normatif dengan pendekatan undang-undang dan kasus. Dari hasil penelitian tersebut, dapat disimpulkan bahwa perjanjian perdamaian di antara para pihak dibuat dalam bentuk akta perdamaian di hadapan Notaris mengikat para pihak seperti layaknya undang-undang bagi para pihak dan memiliki kekuatan pembuktian yang sempurna.</p><p> </p>