Preface |
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vii | |
Contents Summary |
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ix | |
Detailed Contents |
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xi | |
Contributors |
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xxiii | |
Abbreviations |
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xxix | |
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Part 1 Fundamental Issues |
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1 | (62) |
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1 Guide for Regulating Dispute Resolution (GRDR): Principles |
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3 | (10) |
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I Dispute Resolution Mechanisms |
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4 | (2) |
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4 | (1) |
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B Regulating Dispute Resolution |
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5 | (1) |
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C Functional and Modular Approach |
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5 | (1) |
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5 | (1) |
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5 | (1) |
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II Infrastructure and Framework |
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6 | (1) |
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6 | (1) |
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6 | (1) |
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6 | (1) |
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6 | (1) |
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IV Dispute Resolution Clauses |
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7 | (1) |
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7 | (1) |
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7 | (1) |
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V Choice of Dispute Resolution Procedure |
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7 | (1) |
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7 | (1) |
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B Centralised or Decentralised Approach |
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7 | (1) |
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7 | (1) |
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D Transfer to Other Dispute Resolution Mechanisms |
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8 | (1) |
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8 | (1) |
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8 | (1) |
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8 | (1) |
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B Regulatory Tools and Approaches |
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8 | (1) |
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VII Limitation and Prescription Periods |
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8 | (1) |
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8 | (1) |
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8 | (1) |
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9 | (1) |
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9 | (1) |
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9 | (1) |
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9 | (1) |
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XI State (Judicial) Review of Results |
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9 | (1) |
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10 | (1) |
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10 | (1) |
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10 | (1) |
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10 | (1) |
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10 | (1) |
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10 | (1) |
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11 | (1) |
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11 | (2) |
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2 Guide for Regulating Dispute Resolution (GRDR): Principles and Comments |
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13 | (20) |
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I Dispute Resolution Mechanisms |
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15 | (3) |
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15 | (1) |
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B Regulating Dispute Resolution |
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15 | (1) |
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C Functional and Modular Approach |
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16 | (1) |
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17 | (1) |
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17 | (1) |
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II Infrastructure and Framework |
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18 | (1) |
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18 | (2) |
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18 | (1) |
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19 | (1) |
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19 | (1) |
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IV Dispute Resolution Clauses |
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20 | (1) |
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20 | (1) |
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20 | (1) |
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V Choice of Dispute Resolution Procedure |
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21 | (2) |
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21 | (1) |
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B Centralised or Decentralised Approach |
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21 | (1) |
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22 | (1) |
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D Transfer to Other Dispute Resolution Mechanisms |
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22 | (1) |
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23 | (1) |
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23 | (1) |
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23 | (1) |
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B Regulatory Tools and Approaches |
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24 | (1) |
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VII Limitation and Prescription Periods |
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24 | (1) |
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25 | (2) |
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25 | (1) |
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25 | (1) |
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25 | (2) |
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27 | (1) |
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27 | (1) |
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XI State (Judicial) Review of Results |
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27 | (1) |
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28 | (1) |
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28 | (1) |
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29 | (1) |
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29 | (1) |
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29 | (11) |
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30 | (1) |
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30 | (1) |
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30 | (1) |
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30 | (1) |
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30 | (1) |
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31 | (1) |
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31 | (2) |
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3 Principled Regulation of Dispute Resolution: Taxonomy, Policy, Topics |
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33 | (30) |
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34 | (2) |
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34 | (1) |
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34 | (1) |
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35 | (1) |
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35 | (1) |
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36 | (7) |
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36 | (1) |
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37 | (3) |
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40 | (1) |
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D Modules and Differentiation |
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40 | (3) |
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43 | (7) |
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A Normative Individualism |
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43 | (2) |
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B Consequences of Normative Individualism |
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45 | (1) |
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C Freedom, Equality, Efficiency |
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46 | (2) |
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48 | (2) |
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50 | (1) |
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50 | (1) |
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51 | (1) |
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51 | (5) |
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A From Taxonomy, Policy and Topics to Principles |
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51 | (1) |
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52 | (3) |
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55 | (1) |
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56 | (7) |
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56 | (2) |
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58 | (1) |
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59 | (4) |
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Part 2 Regulation of Dispute Resolution |
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63 | |
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4 Regulation of Dispute Resolution in Austria: A Traditional Litigation Culture Slowly Embraces ADR |
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65 | (28) |
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65 | (2) |
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A Current Situation in Austria |
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65 | (1) |
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B Appropriateness of Dispute Resolution Form |
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66 | (1) |
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II The Legislator's Approach |
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67 | (8) |
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A The Regulation of ADR in General |
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61 | (7) |
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B Incentives to Use Certain Types of ADR |
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68 | (1) |
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C The Role of Legal Culture |
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69 | (1) |
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D Advisory Duties of Lawyers |
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69 | (1) |
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E Restriction of Access to Court with a View to Alternative Dispute Resolution |
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69 | (5) |
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74 | (1) |
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G The Regulation of ADR and Constitutional/Human Rights Law |
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74 | (1) |
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H ADR and International (Soft) Law |
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75 | (1) |
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III Approach towards Specific ADR Instruments |
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75 | (11) |
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75 | (1) |
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76 | (5) |
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81 | (1) |
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82 | (3) |
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85 | (1) |
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86 | (7) |
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89 | (4) |
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5 Regulation of Dispute Resolution in Belgium: Workable Solutions? |
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93 | (22) |
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93 | (3) |
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A Commonly Deployed Dispute Resolution Procedures |
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93 | (3) |
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96 | (1) |
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II General Approach of the Legislator as Regards the Regulation of ADR and Adjudication |
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96 | (3) |
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96 | (1) |
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B Incentives to Use Certain Types of ADR |
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97 | (1) |
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C Restriction of Access to Courts as an Incentive |
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98 | (1) |
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III Approach towards Specific ADR Instruments |
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99 | (13) |
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99 | (1) |
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100 | (10) |
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110 | (1) |
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110 | (1) |
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111 | (1) |
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IV Policy Recommendations |
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112 | (3) |
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113 | (2) |
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6 Regulation of Dispute Resolution in Denmark: Mediation, Arbitration, Boards and Tribunals |
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115 | (20) |
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115 | (1) |
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116 | (9) |
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A Court-connected Mediation of Civil Cases |
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118 | (2) |
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B Public Sector Mediation in Family Matters |
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120 | (3) |
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C Mediation in Other Areas |
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123 | (2) |
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125 | (3) |
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128 | (1) |
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129 | (1) |
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VI Regulation of Mediation and Policy Matters |
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130 | (5) |
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132 | (3) |
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7 Regulation of Dispute Resolution in England and Wales: A Sceptical Analysis of Government and Judicial Promotion of Private Mediation |
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135 | (40) |
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136 | (1) |
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II Overview of Modern ADR Policy and Development |
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136 | (11) |
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136 | (2) |
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B Mediation Policy Development |
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138 | (3) |
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C Judicial Promotion of Mediation in Civil Justice Reform |
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141 | (1) |
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142 | (1) |
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E Court-attached Mediation Schemes |
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143 | (1) |
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F Judicial Development of Mediation Law |
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143 | (1) |
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144 | (2) |
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H Mandatory Mediation in Civil Disputes |
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146 | (1) |
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I Learning from Court-attached Mediation Schemes |
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147 | (6) |
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J The Future of Mediation Policy |
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148 | (2) |
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K Mediation and the Withdrawal of Legal Aid |
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150 | (1) |
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L Judiciary and Government---a Parting of the Ways? |
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151 | (2) |
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153 | (22) |
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153 | (1) |
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153 | (1) |
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154 | (1) |
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154 | (1) |
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E Current Regulation of Arbitration |
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155 | (1) |
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156 | (1) |
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G Civil/Commercial Disputes |
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157 | (1) |
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H Court-based Mediation Schemes |
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157 | (1) |
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I Commercial Court ADR Orders |
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158 | (1) |
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J The Court of Appeal Mediation Scheme (CAMS) |
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158 | (1) |
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K Low-value Civil Disputes |
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159 | (1) |
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160 | (1) |
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160 | (1) |
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161 | (1) |
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162 | (1) |
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P Mediation in Judicial Review Cases |
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163 | (1) |
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Q Community/Neighbourhood Mediation |
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164 | (1) |
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R Mediation in the Criminal Justice System |
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165 | (1) |
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S UK Regulation of Mediation |
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165 | (1) |
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T EU Regulation of Mediation |
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166 | (2) |
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U What are the Duties of Mediators? |
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168 | (1) |
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V Should There Be More Regulation of ADR? |
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169 | (2) |
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W Quasi-regulatory/Supervisory Bodies |
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171 | (1) |
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172 | (3) |
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8 Regulation of Dispute Resolution in France: Evolutions and Challenges |
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175 | (34) |
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176 | (2) |
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A Dispute Resolution Procedures Most Commonly Deployed in France |
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176 | (1) |
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B Strength and Weaknesses of These Dispute Resolution Mechanisms |
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177 | (1) |
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C Practical Use and Theoretical Appropriateness |
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178 | (1) |
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II General Approach of the Legislator as Regards the Regulation of ADR and Adjudication |
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178 | (11) |
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178 | (3) |
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B Incentives to Use Certain Types of ADR |
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181 | (3) |
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C Restriction of Access to Courts with a View to Alternative Dispute Resolution |
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184 | (2) |
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D Impact of Human Rights Law on the Regulation of ADR |
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186 | (1) |
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E No Influence of the UNCITRAL Model Law on International Commercial Conciliation |
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186 | (1) |
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F Special Rules for Consumers |
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187 | (2) |
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III Approach towards Specific ADR Instruments |
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189 | (14) |
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189 | (1) |
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190 | (6) |
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196 | (3) |
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199 | (1) |
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200 | (3) |
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IV Policy Recommendations |
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203 | (6) |
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A Necessity to Regulate ADR with Regard to its Connection with Civil Justice |
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203 | (1) |
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B Nature of State Intervention in Supporting ADR |
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203 | (1) |
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C Costs of Conflict Resolution |
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203 | (1) |
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D Promotion of ADR Mechanisms by the State |
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204 | (1) |
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E Effective Approaches for the Parties/Decision-makers to Understand at an Early Stage What the Conflict is About and to Which Forum it Should Go |
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204 | (1) |
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F ADR Should Not Be a Compulsory Pre-trial Procedure |
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205 | (1) |
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206 | (3) |
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9 Regulation of Dispute Resolution in Germany: Cautious Steps towards the Construction of an ADR System |
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209 | (30) |
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210 | (4) |
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A Overview---Statistical Data |
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210 | (3) |
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B Strengths and Weaknesses of the Different Dispute Resolutions Mechanisms |
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213 | (1) |
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C The Need for an ADR Market |
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213 | (1) |
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214 | (7) |
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A General Regulation of ADR |
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214 | (2) |
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216 | (2) |
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C Restriction of Access to Courts |
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218 | (2) |
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D The Impact of Constitutional Law |
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220 | (1) |
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E The Impact of the UNCITRAL Model Law on International Commercial Conciliation (2002) |
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220 | (1) |
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F ADR and Consumer Protection |
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221 | (1) |
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III Specific ADR Instruments |
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221 | (14) |
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221 | (1) |
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222 | (9) |
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231 | (2) |
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233 | (1) |
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234 | (1) |
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IV Policy Recommendations |
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235 | (4) |
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236 | (3) |
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10 Regulation of Dispute Resolution in Italy: The Bumps in the Road to Successful ADR |
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239 | (30) |
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240 | (4) |
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A Dispute Resolution Procedures Most Commonly Deployed in Italy |
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240 | (2) |
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B Strengths and Weaknesses of Certain Dispute Resolution Mechanisms |
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242 | (1) |
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C Practical Use and Theoretical Appropriateness---The Market of ADR |
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243 | (1) |
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II Regulatory Approach as Regards ADR and Adjudication |
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244 | (7) |
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244 | (1) |
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B Incentives to Use Certain Types of ADR |
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245 | (4) |
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C Restriction of Access to Courts with a View to Alternative Dispute Resolution |
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249 | (1) |
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D Constraints of ADR Regarding Constitutional and Human Rights Law |
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250 | (1) |
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E Special Rules for Consumers and the UNCITRAL Model Law on International Commercial Conciliation |
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251 | (1) |
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III Approach towards Specific ADR Instruments |
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251 | (11) |
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251 | (1) |
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252 | (9) |
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261 | (1) |
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261 | (1) |
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261 | (1) |
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262 | (7) |
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262 | (2) |
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B Promotion of ADR Mechanisms by the State |
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264 | (1) |
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C Election of the Appropriate Conflict Forum |
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264 | (1) |
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D The Future of Mandatory Mediation Legislation |
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264 | (2) |
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266 | (1) |
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267 | (2) |
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11 Regulation of Dispute Resolution in Japan: Alternative Dispute Resolution and its Background |
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269 | (28) |
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I Overview of the Dispute Resolution Mechanisms in Japan |
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269 | (10) |
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270 | (1) |
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B Court-annexed Mediation (Conciliation) |
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271 | (2) |
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C ADR Services by Administrative Organs |
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273 | (1) |
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274 | (3) |
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E Relative Strengths and Weaknesses of Each Dispute Resolution Mechanism |
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277 | (1) |
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278 | (1) |
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II The Japanese Legislator's Approach as Regards the Regulation of ADR |
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279 | (5) |
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A Promotion of Use of ADR |
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279 | (2) |
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B Motives to Regulate ADR Procedures |
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281 | (3) |
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C Constraints as Regards the Regulation of ADR Resulting from Constitutional Law |
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284 | (1) |
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III Regulation of Specific ADR Instruments |
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284 | (9) |
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284 | (1) |
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285 | (5) |
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290 | (2) |
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292 | (1) |
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IV Some Remarks on Policy Questions |
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293 | (4) |
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A Justifications for the Regulation of ADR |
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293 | (1) |
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B Forms and Nature of Regulation |
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293 | (3) |
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296 | (1) |
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12 Regulation of Dispute Resolution in the Netherlands: Does Regulation Support or Hinder the Use of ADR? |
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297 | (32) |
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I Use of Dispute Resolution Mechanisms in the Netherlands |
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298 | (10) |
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A Characteristics of Netherlands Dispute Resolution Mechanisms and Statistics |
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298 | (3) |
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B Strengths and Weaknesses and Appropriateness of Various Dispute Resolution Mechanisms |
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301 | (3) |
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C Practical Use and Theoretical Appropriateness Differ---The Market Does Not Really Work |
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304 | (4) |
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II General Approach of the Legislator with Regard to the Regulation of ADR and Adjudication |
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308 | (11) |
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A Regulation of Various Mechanisms of ADR |
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308 | (6) |
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B Incentives to Use Certain Types of ADR |
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314 | (2) |
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C Court-annexed Mediation in the Netherlands |
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316 | (3) |
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III Approach towards Specific ADR Instruments |
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319 | (4) |
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319 | (1) |
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320 | (1) |
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321 | (1) |
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322 | (1) |
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322 | (1) |
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323 | (6) |
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A Should ADR Be Regulated at All? |
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323 | (1) |
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B Regulation Should Be Limited to Providing a General Legal Framework for Particular ADR Procedures |
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324 | (1) |
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C Triage and Conflict Diagnosis System |
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325 | (1) |
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D Cost Aspects of Regulation |
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325 | (1) |
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E Minimal Regulation, Restricted to Quality Standards and Referral Procedures |
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326 | (1) |
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F Set an Example and Stimulate Training and Knowledge of Conflict Management |
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326 | (1) |
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G Enforcement and Mediation Clauses |
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327 | (1) |
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H Responsibility for the Choice of a Conflict Resolution Mechanism |
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327 | (1) |
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327 | (2) |
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13 Regulation of Dispute Resolution in Norway: Vertical and Horizontal Regulatory Strategies |
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329 | (34) |
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I Introduction to the Characteristics of ADR in Norway Today |
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330 | (4) |
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A Most Commonly Deployed ADR Procedures |
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330 | (1) |
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B Relative Strengths and Weaknesses |
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330 | (3) |
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C Theoretical Appropriateness and Practical Use |
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333 | (1) |
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II General Approach of the Legislator as Regards the Regulation of ADR and Adjudication |
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334 | (8) |
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334 | (1) |
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335 | (4) |
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C ADR as a Restriction of Access to Courts |
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339 | (2) |
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D Special Rules for Consumer Disputes |
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341 | (1) |
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III Approach towards Specific ADR Instruments |
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342 | (13) |
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342 | (1) |
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343 | (6) |
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349 | (1) |
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349 | (1) |
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350 | (1) |
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351 | (4) |
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355 | (8) |
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A ADR Regulation---The Discussion so Far |
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355 | (1) |
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B Scope of Regulation for Specific ADR Procedures |
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356 | (1) |
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C Level of State Engagement---ADR as Alternative Resolution or as an Element of the State Civil Justice System |
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356 | (1) |
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D Appropriate Allocation of Costs |
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357 | (1) |
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E Effective Approaches for Clarifying Conflicts and their Most Appropriate Resolution Forum |
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357 | (1) |
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F ADR as a Compulsory Pre-trial Procedure versus Less Invasive Measures |
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357 | (2) |
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359 | (4) |
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14 Regulation of Dispute Resolution in Switzerland: Mediation, Conciliation and Other Forms of ADR in Switzerland |
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363 | (56) |
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I Different Forms of ADR in Switzerland and their Significance |
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364 | (28) |
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364 | (3) |
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B Out-of-court or Court Settlement through Negotiation between the Parties |
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367 | (1) |
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C Pre-trial Conciliation and Settlement Conferences at Court |
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368 | (5) |
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373 | (2) |
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375 | (10) |
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F ADR Procedures for Consumer Disputes |
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385 | (7) |
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II General Approach of the Legislator as Regards the Regulation of ADR and Adjudication |
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392 | (6) |
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392 | (1) |
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B Incentives to Use Certain Types of ADR |
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393 | (2) |
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C Restriction of Access to Court with a View to ADR |
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395 | (1) |
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D The Influence of Constitutional/Human Rights Law on ADR Regulations |
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396 | (1) |
|
E The Influence of the UNCITRAL Model Law on International Commercial Conciliation (2002) on the Drafting of Legislation |
|
|
397 | (1) |
|
F Special Rules for Consumers and Their Development |
|
|
398 | (1) |
|
III Regulation of Specific ADR Instruments |
|
|
398 | (11) |
|
A Resolving Disputes by Negotiation |
|
|
398 | (1) |
|
|
399 | (4) |
|
|
403 | (1) |
|
D ADR Procedures for Consumer Disputes |
|
|
404 | (2) |
|
E Expert Opinion (Schiedsgutachten) |
|
|
406 | (1) |
|
|
407 | (2) |
|
IV Policy Recommendations |
|
|
409 | (10) |
|
|
409 | (1) |
|
B Which Forms of ADR Should Be Supported by the Legislator? |
|
|
409 | (1) |
|
C From the Right of Access to Justice to the Right of Access to a Fair Dispute Resolution |
|
|
410 | (1) |
|
D Regulation of Conciliation as a Part of the Process of Adjudication |
|
|
411 | (1) |
|
E Regulation of Mediation |
|
|
412 | (1) |
|
F Regulation of ADR Procedures for Consumer Disputes |
|
|
413 | (1) |
|
|
414 | (1) |
|
H `Triage' for Adjudication, Conciliation and Mediation |
|
|
415 | (1) |
|
|
415 | (4) |
|
15 Regulation of Dispute Resolution in the United States of America: From the Formal to the Informal to the `Semi-formal' |
|
|
419 | |
|
|
I Introduction: History and Characteristics of Dispute Resolution in the US: Formalism, Informalism and `Semi-formalism' with and without Regulation |
|
|
413 | (15) |
|
II The Characteristics of `Formal' Justice |
|
|
428 | (2) |
|
III Informal Justice in the US |
|
|
430 | (4) |
|
IV `Semi-formal' Justice in the US |
|
|
434 | (7) |
|
V What Little We Know about Dispute Resolution Use and Regulation |
|
|
441 | (5) |
|
VI Assessing Justice in Plural Procedural Practices |
|
|
446 | |
|
|
449 | |