This chapter provides an overview of the aims and structure of the book, which explores the emergent development and challenges in implementing community–investor consultation, dispute prevention and facilitation mechanisms amongst multilateral and national development banks operating in the Asia Pacific region. In the several decades since the development of the first multilateral community–investor dispute resolution and accountability mechanisms, much has been learned about public facilitation, community engagement and dispute prevention during the early stages of major infrastructure development programmes. Drawing on a qualitative triangulating approach that compares public facilitation policy design with case-based practice, the remaining chapters of the book will examine community–investor dispute resolution policy design, supplemented by case studies, surveys and interviews of select private non-state actors in the Asia Pacific region to address the question of whether, and if so how, multi-stakeholder community–investor public facilitation methods contribute to the prevention and early resolution of infrastructure disputes and advance sustainable development objectives.

The BRI, formally known as the One Belt, One Road Initiative, is a global development initiative initiated by the Chinese government arousing significant academic and policy interest. Since 2005, China has completed close to USD2.3 trillion in foreign projects since with 41% (USD966 billion) financing infrastructure projects and an even larger amount (USD1.4 trillion) towards investment in foreign assets – port facilities, mining and energy assets, and acquisitions of foreign firms. This chapter reviews the role of the BRI in infrastructure development including its contributions and challenges in advancing sustainable development alongside efforts at engagement with local communities. A number of approaches to addressing BRI disputes have emerged at the pre- and post-dispute stage. These include both formal and informal dispute mitigation and resolution mechanisms. Conversations with project coordinators highlight the importance of neutrality and relationship preservation. Systems are emerging to increase community access to grievance mechanisms including China’s mediation and consultation mechanism for the mining industry.

This chapter presents conclusions and relevant recommendations. Project data, survey findings and comparative case studies suggested that the introduction of heightened pre-project community consultation and grievance mechanisms within global multilateral development banks in the mid 2010–2020s have corresponded with a drop in the percentage of grievances per project from 15.4% in 2019 to 7.1% in 2021. Survey findings of fifty-five practitioners engaged in infrastructure-related dispute prevention in the Asia Pacific region likewise found that prior community consultation was considered the most effective approach to preventing infrastructure disputes. Overall, most disputes arose because of lack of adequate consultation with members of the community. Similarly, the twelve community–investor dispute case studies showed that in circumstances of increasingly heightened standards for pre-project community consultation compared with ad-hoc discretionary consultation practices, the number of stalled/cancelled and litigated case declined by 33%, the percentages of cases referred to local courts declined by 16%, and the number of cases pursuing party agreement through mediation or negotiation increased by 50%. These findings support the development of increasingly robust community consultative engagement channels, particularly for multilateral and national banks that have not yet implemented such policies. Such engagement channels, far from aggregating complaints, conversely correlate with a reduction in the overall proportion of project disputes.

This chapter describes the WTO dispute settlement system, focusing on its structure, procedures, and recent challenges. The WTO system, established in 1995, was a significant innovation in international trade law, featuring mandatory jurisdiction and a detailed set of rules in the Dispute Settlement Understanding (DSU). It aimed to ensure adherence to WTO commitments and provide predictability to the trading system.However, recent US concerns over the Appellate Body’s functioning led to blocked appointments, rendering the Appellate Body defunct and the system non-binding. This crisis has led to the exploration of alternative mechanisms like the Multi-Party Interim Appeal Arbitration Arrangement (MPIA) and increased reliance on regional trade agreement dispute settlement mechanisms.

Defamation is a ubiquitous tort in modern society. Defamation protects a person’s reputation, rather than their bodily integrity, goods or land. With the rapid expansion of social media, it is frighteningly easy for false and disparaging comments to spread online like wildfire. This chapter introduces the tort of defamation and its purpose in society. Defamation has undergone substantial reform over the years, thus key amendments are explained, along with emerging issues. The chapter outlines and explains the elements of defamation and explores cases that clarify how courts interpret and apply defamation principles. Next, defences and remedies are explained, followed by the increasing focus on defamation and social media. The chapter concludes with a brief discussion of privacy and breach of confidentiality, on which plaintiffs can rely when defamation does not assist.

This chapter begins by exploring the concept of legitimacy, which the CCP regime seeks to achieve in part through its project of legal construction. It employs official data and primary documents to present multiple aspects of access to justice nominally afforded by the legal system: training of a cadre of legal professionals, provision of institutions for dispute resolution—including mediation, petition, and litigation, establishment of state-sponsored legal aid, and implementation of an official campaign to imbue Chinese citizens with legal consciousness. It concludes with an assessment of China’s model of legal development, reviewing arguments about law and order, order maintenance, pure legality, normative and prerogative aspects of the dual state, and legal dualism. The illiberal system of law is a powerful tool in the hands of the party-state.

This chapter explores the growing prevalence of non-staff personnel within the UN system and the legal challenges they face in accessing justice. As non-staff personnel increasingly take on roles traditionally held by staff, they remain largely excluded from the jurisdiction of IATs and often may only avail themselves of arbitration clauses that can be prohibitive in practice. The chapter examines potential legal implications of this situation, such as functional immunity before domestic courts, as well as proposed solutions, such as alternative dispute mechanisms and expedited arbitration. It reviews current UN pilot projects aimed at providing non-staff personnel with informal dispute resolution avenues and discusses potential reforms to bridge the access-to-justice gap.

Chapter 5 delves into the ADR movement both globally and in China. Through an interdisciplinary methodology and fieldwork, it details how the policy of ‘persisting and developing the Fengqiao Experience’ is transmitted from the central government to the grassroots level. The chapter provides an in-depth analysis of how grassroots communities and judicial organisations in China implement central policies, innovate based on practical conditions and adapt pragmatically. It highlights the local characteristics of dispute resolution and the challenges faced by macro-level policies in addressing significant regional socioeconomic disparities in China.

Orfeas Chasapis TassinisWhat law should apply to contracts concluded between international organizations and private parties? Probing the concept of a ‘right’ to party autonomy, this chapter employs a Holfeldian framework to unpack the perspectival dimension of this age-old problem. It argues that international organizations may be at liberty of choosing the law applicable to their contracts, but domestic legal orders are not necessarily under an obligation to recognize that choice as effective. Arguably, however, deference to party choice is due in the context of arbitration. Yet, the frequent absence of party choice puts pressure on arbitrators to make principled choices on applicable law. Given the lack of clarity on how these choices are supposed to be made, the ‘closest connection’ test is put forward as perhaps the best safeguard for objectivity and predictability.

In this book, we have mostly depicted companies as legal actors in their own right that act through certain human agents. In this chapter, our focus changes: we now think of companies as things that may be owned and controlled. Nevertheless, the motivations of human agents remain at the forefront. Some of the law that we encountered in previous chapters will be relevant here, because it regulates the behaviour of the human protagonists; for example, the law on directors’ duties. However, the law of takeovers in Australia is a special body of law. This law is set out in chs 6, 6A, 6B and 6C of the Corporations Act, together with a unique dispute resolution system that diverts disputes away from the courts and into an administrative body—the Takeovers Panel (‘the Panel’)—during the life of a takeover bid. The decision-making of the Panel is guided by policy and commerciality, rather than legal doctrine.

The international law of the sea has developed over many hundreds of years. Modern principles can be traced back to the 17th-century debates between scholars such as Grotius and Selden over whether or not nations had the right to control areas of the ocean. At that time, nations were primarily concerned over access to fishing grounds and trading routes; today the international law of the sea has importance for a large range of diverse maritime interests relating to security, international trade, communications, scientific research, seabed minerals, human rights, climate change, fishing, biodiversity conservation and more. The law of the sea is today dominated by the monumental 1982 United Nations Convention on the Law of the Sea (LOSC). Much of the content of the LOSC represents customary international law and the legal regime for the oceans continues to evolve in response to emerging issues.

Settlement, not trial, is the predominant way in which most legal disputes are resolved. Despite this, very little research has examined how the public thinks about settlement. This chapter discusses the need for such research and describes the first few projects trying to fill that need. People hold complex and fairly accurate beliefs about the nature and prevalence of settlement. They also show remarkable willingness to draw inferences when parties settle, including inferences about a defendant’s responsibility. Some avenues for the future of this burgeoning field are also discussed.

This chapter details the process of examining human rights claims by international bodies. It covers the burden of proof, sources of evidence, free evaluation of evidence, framing of legal disputes, friendly settlements, and provisional measures, highlighting the procedural aspects and powers of international bodies in handling claims. The chapter examines the standards of proof, the methods of gathering and assessing evidence, and the procedures for resolving disputes. It also discusses the role of provisional measures in protecting human rights during the examination process and the importance of ensuring fairness and transparency in international human rights litigation.