This chapter explains why the promotion of workouts and hybrid procedures can be particularly desirable in countries with inefficient insolvency proceedings, as it generally occurs in emerging economies. Moreover, due to the concentrated debt structures that firms usually have in emerging economies, reaching an out-of-court solution can be a more feasible option for viable but financially distressed firms. Nonetheless, informal workouts are subject to many limitations. For that reason, in addition to implementing several strategies to actively promote informal workouts, this chapter argues that emerging economies should adopt enhanced workouts where the support of certain norms or actors can facilitate a successful out-of-court restructuring. Additionally, it is argued that emerging economies should also implement hybrid procedures equipped with several tools existing in formal reorganization procedures. Nonetheless, due to the institutional weaknesses existing in emerging economies, the involvement of courts should be minimized. This chapter explains how this goal can be achieved while making sure that creditors remain protected against the opportunism of debtors.

Warren Hastings, the first governor-general of Bengal (1772-85), patronized learning on a larger scale than any previous East India Company official. This chapter argues that he did so in an attempt to square the Company’s growing political footprint with its hybrid constitution. The Company’s conquest of Bengal from midcentury had stirred up arguments in Britain and India that a body of merchants could not, or should not, rule vast and populous territories. Hastings sympathized with such arguments, but he was bound by duty and circumstances to oppose them. “Conciliation” offered him a means to do so. This idea, derived from both European and Mughal sources, denoted a commercial style of politics based on accommodation and negotiation. In the context of scholarly patronage, it tapped into widespread positive associations between commerce and knowledge. Hastings maintained that patronizing European scholar-officials and Indian learned elites would conciliate opinion toward the Company state. If this hybrid entity was to last, he suggested, it must traffic not only in material goods but also in intellectual ones.

Attempts to alter the balance between the Company’s two characters would only intensify in the decade-and-a-half after Wellesley’s departure (1805–20). Ideas about knowledge would continue to feature in these attempts. The Charter Act of 1813 tied the Company’s patronage of scholars to its collection of land revenue. Scholar-officials and their Indian collaborators, meanwhile, tailored their intellectual projects to the aim of territorial expansion. Overall, such expansion was encouraging engagement with Indian society and raising the prospect of involvement in Indian education. The Court of Directors was slow to embrace this prospect. But by the 1820s, the need for new ideas about knowledge could not be ignored any longer.

In the decade after Warren Hastings’ departure (1785–98), his idea of conciliation encountered new and formidable opposition. He relied on the idea in his defense against impeachment in parliament, but his principal accuser, Edmund Burke, identified it with corruption. Conciliation also acquired a bad name in India, where Hastings’ acting replacement, John Macpherson, made it the watchword of his scandalous administration. Hence, it fell to Lord Cornwallis to rid the idea of its unsavoriness, as part of his attempt to restore metropolitan faith in the Company state. The governor-general’s alliance with Sir William Jones helped in this regard. In the 1790s, pressure on the Company state and on the idea of conciliation abated. Yet this was to be a temporary reprieve. Soon, both would be challenged afresh by the governor-generalship of Lord Wellesley.

In the 1820s–30s, the question of “native education” generated sprawling debates involving all three Company presidencies. At issue now was not whether the Company could or should secure extensive territory but instead whether, having done so, it could or should govern it. Throughout the period, officials debated the balance to be struck in education policy between conciliation and mass education. This question was briefly conflated with issues of language, leading to the so-called Anglicist-Orientalist controversy. For a fleeting moment in the 1830s, English education appeared to have prevailed. The more lasting impact of the controversy, however, was the end of conciliation and the triumph of mass education in Company ideology.

All states have an obligation to settle disputes peacefully in accordance with arts 2(3) and 33 of the Charter of the United Nations (‘UN Charter’), and the purpose of this chapter is to provide an introduction to the methods for the settlement of international disputes. It begins with an overview of international dispute settlement, including a discussion of the concept of a ‘dispute’, and the distinction between political and legal disputes. It then traces the evolution of the obligation to settle disputes peacefully through its broad phases: the 1899 and 1907 Hague Conventions for the peaceful settlement of international disputes, and the creation of the Permanent Court of Arbitration; the Covenant of the League of Nations of 1919, and the creation of the Permanent Court of International Justice (‘PCIJ’); and the Kellogg–Briand Pact of 1928, and the UN Charter of 1945. The chapter then considers the various methods of international dispute settlement, beginning with the diplomatic methods (negotiation, fact-finding and inquiry, the use of ‘good offices’, mediation, and conciliation) before turning to the adjudicatory forms of dispute settlement.

When a treaty prescribes how disputes can be settled, it usually provides for a preliminary phase involving direct negotiations or consultations. In the case of bilateral agreements, more binding mechanisms tend to be found in agreements with more specific obligations, or those directly affecting individual interests, such as trade. Otherwise, bilateral agreements will often specify that disputes are to be resolved by the diplomatic channel or other avenue of voluntary settlement. Both bilateral and multilateral treaties may provide for conciliation or mediation. The parties may, however, wish to resort to compulsory binding settlement. The two principal features are a prior agreement to submit disputes to a third party, and a provision that the decision of the third party is legally binding on the parties in dispute. Procedures of arbitration and judicial settlement, including the International Court of Justice, are analysed. In respect of remedies, the chapter examines countermeasures and the principles underlying them, sacrosanct obligations and necessity.

Chapter 10 argues the practices and discourses of reconciliation have tended to operate as a form of inappropriate and premature settlement or closure of the grievances of victim-survivors and their descendants. To encourage victim-survivors and a society to pursue reconciliation in the absence of addressing other elements of transitional justice may operate as a reaffirmation of the power structures of states and churches. While the experience of Canada and Australia contains an explicit reconciliation discourse and practice, in the absence of significant change in and imagination regarding power relationships in those societies, they join the United States, Ireland, and the United Kingdom in remaining deeply unreconciled societies. In addition, the reconciliation practice of the Catholic church regarding historical abuse demonstrates its inability to effectively self-critique in its processes of reconciliation.

The award of the arbitrators in the Taba case has been subject to criticism on the grounds that the arbitrators based their decision on existing markers on the ground and refrained from examining when the markers had been placed and by whom and whether their siting was in accordance with the legal boundary. Nevertheless, it was a landmark case in that for the first, and so far only time, Israel and a neighbouring Arab State settled a border dispute by means of an international arbitration. States usually go to arbitration only on matters that they do not consider to be of fundamental importance and losing would not have far-reaching consequences. This is true of the Taba dispute, which involved a dispute of some 250 metres of shoreline.Professor Lapidoth summarises that for political and perhaps even psychological reasons the two parties attributed to this dispute much more weight than was objectively reasonable.

This chapter begins by elaborating on the concept of a dispute, before providing a historical perspective on the evolution of the requirement to settle disputes peacefully. The chapter then explores diplomatic as well as legal methods of dispute settlement. Diplomatic forms of dispute settlement (also known as political or non-legal forms of dispute settlement) include negotiation, mediation, inquiry, and conciliation. Legal forms of dispute settlement include arbitration and adjudication. Resort by states to dispute settlement procedures, and in particular legal methods of dispute settlement, has grown exponentially in the last decades. Since the 1990s, the International Court of Justice has had an increasingly active docket of cases, and, in addition, the Permanent Court of Arbitration has undergone a sort of renaissance. The focus of this chapter will be on the settlement of inter-state disputes, as opposed to disputes between states and non-state actors or between non-state actors.

This chapter begins by elaborating on the concept of a dispute, before providing a historical perspective on the evolution of the requirement to settle disputes peacefully. The chapter then explores diplomatic as well as legal methods of dispute settlement. Diplomatic forms of dispute settlement (also known as political or non-legal forms of dispute settlement) include negotiation, mediation, inquiry, and conciliation. Legal forms of dispute settlement include arbitration and adjudication. Resort by states to dispute settlement procedures, and in particular legal methods of dispute settlement, has grown exponentially in the last decades. Since the 1990s, the International Court of Justice has had an increasingly active docket of cases, and, in addition, the Permanent Court of Arbitration has undergone a sort of renaissance. The focus of this chapter will be on the settlement of inter-state disputes, as opposed to disputes between states and non-state actors or between non-state actors.

This Chapter appraises the range and depth of Patrick Glenn’s scholarly legacy by exploring some of the many lessons that can be drawn from his opus magnum Legal Traditions of the World. To this purpose, the chapter will focus on three key notions underlying Glenn’s chefs-d’œuvre: Law, Tradition, and Conciliation. The argument is that Glenn’s findings have in multiple ways enlightened the understanding of what the law is (outside and also inside the West), as well as the relentless dynamics within and between legal traditions. Through these findings, Glenn has also provided us – his friends, colleagues, readers – with a powerful intellectual tool to pursue his conciliatory dream towards a world of tolerance and diversity.

The Equal Opportunities Commission (EOC), established in 1996, investigates and seeks to resolve disputes arising in connection with Hong Kong’s anti-discrimination ordinances. Its complaint-handling process involves recourse to conciliation, investigation and litigation. The EOC thus provides a hybrid multi-tier dispute resolution service. If conciliation fails, the EOC may investigate and eventually assist a person to pursue in court a complaint which is thought to merit further action. This chapter asks how the EOC can maintain neutrality and confidentiality when discharging its respective functions of conciliator, investigator and litigator in the same matter, without becoming entangled in actual or potential conflicts of interest. It examins how similar institutions in the United States, the United Kingdom and elsewhere have sought (or not) to resolve the tension in their roles when handling discrimination complaints. It then discusses recommendations and their underlying rationale for reconciling the EOC’s seemingly conflicting roles, in order to effectively resolve discrimination complaints and bridge the long-standing gap in public perception.

This chapter traces the part the International Chamber of Commerce (ICC) played in the development of a modern, robust, and efficient system of dispute resolution, looking at how international commercial arbitration developed from within the ICC – how it was institutionalized. The chapter is divided into two sections. The first traces the creation of the ICC dispute resolution system. It shows that some of the founders of the ICC and its Court of Arbitration were familiar with, and may have been inspired by, the arbitration rules of other organizations. Yet the ICC was also innovatory, codifying new rules and practices, as clearly reflected in the rules used to govern arbitral proceedings. This chapter refers to all fourteen versions of the ICC Rules of Arbitration – including the amendments – from 1922 to the present. The second section explores the evolution of the ICC dispute resolution system. It describes the major shifts the system underwent in the 1920s and 1930s: from conciliation to arbitration and from equity to law. These changes reflect the ICC’s increasingly important role in the administration of international disputes.

A civil dispute is one which arises between private parties (including governments acting in their private capacity) and excludes criminal prosecutions.

This chapter will introduce the themes and theory of civil dispute resolution (CDR) and explain the structure and limitations of this book to assist readers in navigating through the chapters. This chapter will also introduce the procedures for resolving civil disputes, each of which will be canvassed in more detail in subsequent chapters. While this book need not be read cover to cover, it is recommended that Chapters 1, 2 and 3 be read first as they are fundamental to understanding the remainder of the book.

This chapter introduces the key types and uses of alternative dispute resolution (ADR) and their role in civil dispute resolution (CDR). ADR refers to the alternatives to litigation which individuals may wish to pursue instead of, before, or during, litigation. ADR is usually less formal than litigation — the procedures tend to be more flexible and more variable so the procedures discussed in this chapter are, of necessity, simply examples of how various forms of ADR can occur.

This chapter explores typologies of frontier violence as a particular feature of Britain’s settler colonial world. As historians have discussed, settler colonialism was distinctive from other forms of colonialism for its reliance upon the acquisition of Indigenous lands and the dissolution of Indigenous societies. From the 1820s onwards, the increasing pace of settler migration to the colonies and the settler demand for land created new pressures that generated repetitive patterns of frontier warfare for the next century. Indigenous peoples resisted colonial incursions on their country, and governments responded with an array of measures that ranged from diplomatic solutions to paramilitary policing and the enlistment of martial law. This chapter considers how these patterns of frontier violence were not consistent around the nineteenth-century British world but moved in cycles between strategies of conciliation and extraordinary legalized force. In doing so, it traces how different expressions of frontier violence supported government efforts to secure the settler polity and to assert colonial claims of sovereignty.

The Epilogue explores the impact of competing cultures of violence on secession and the coming of the Civil War. The collapse of the Fugitive Slave Act convinced many in the South that slavery could no longer be preserved within the Union. The rendition of Lucy Bagby from Cleveland, OH, in 1861 marked an attempt to conciliate the South by rebuilding a national consensus on the normativity of proslavery violence. The public condemnation of the Republican officials who returned Bagby to slavery, along with the party’s rejection of compromise measures, demonstrated that this consensus could no longer be restored. For many in the North, the violence of mastery was a moral horror that they were determined to repudiate. For white Southerners, however, the violence of mastery lay at the heart of their understandings of identity and membership in the national community. The violence of mastery also shaped the manner in which the South approached separation from the North, producing acts of aggression and demands for submission during the secession winter of 1860–1861. The Civil War was thus in part the product of an irreconcilable conflict in the cultural perception of violence.