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Alternative dispute resolution and human rights: Developing a rights-based approach through the ECHR

McGregor, L (2015) 'Alternative dispute resolution and human rights: Developing a rights-based approach through the ECHR.' European Journal of International Law, 26 (3). 607 - 634. ISSN 0938-5428

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Abstract

© The Author, 2015. Published by Oxford University Press on behalf of EJIL Ltd. All rights reserved. The presumption that courts are the principal forum for dispute resolution continues to be eroded. Alternative forms of dispute resolution (ADR), including agreement-based ADR (such as mediation and conciliation) and adjudicative ADR (such as arbitration), continue to proliferate and are increasingly institutionalized, leading to their characterization as 'appropriate' or 'proportionate' dispute resolution. Interestingly, despite these developments, the position of international human rights law (IHRL) on two key questions regarding ADR and proportionate dispute resolution (PDR) is unclear. These questions are, first, the standards of justice expected of ADR/PDR (whether entered into voluntarily or mandatorily). Second, the permissible circumstances in which parties to a dispute can be required to use ADR/PDR instead of, or before, accessing courts. The attributes and challenges with ADR/PDR have been discussed extensively in socio-legal studies, feminist literature and the dedicated ADR/PDR literature. This article seeks to bring this vast theory on the diversification and institutionalization of dispute resolution into IHRL. Through the lens of the European Court of Human Rights, this article examines the types of tests that supranational bodies currently employ and advances a framework for assessing the choice, design and implementation of ADR/PDR in the future.

Item Type: Article
Subjects: J Political Science > JZ International relations
K Law > K Law (General)
Divisions: Faculty of Humanities > Law, School of
Depositing User: Jim Jamieson
Date Deposited: 13 Jan 2016 15:55
Last Modified: 23 Jan 2019 02:15
URI: http://repository.essex.ac.uk/id/eprint/15797

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