CONTRACTUAL BASIS FOR REGULATING THE PROCEDURE OF MEDIATION OF NATURAL RESOURCE DISPUTES

Abstract

Introduction. A natural resource dispute should be considered as a type of environmental con-flict. The latter, in turn, is an element of a broader concept, namely, social conflict. The analysis of court statistics shows a sufficient number of the following natural resource disputes: conflicts arising in legal relations in the field of water use; land disputes; ownership, use and management of forests; ensuring the rational use of forest resources; in the field of use and reproduction of flora and fauna, objects of the nature reserve fund, use of subsoil and mining relations.

Summary of the main results of the study. The systematisation and structuring of legal provisions carried out in the course of the study allows us to formulate the following groups of contractual settlement of mediation of natural resource disputes: 1. Mediation agreement is an agreement on the provision of mediation services to prevent or resolve a conflict (dispute) concluded by the parties to a possible or existing conflict (dispute) and the mediator (mediators) in an oral or written form agreed by them and complying with the requirements of the law; 2. Mediation agreement is a written agreement between the parties to legal relations on the method of settlement of all or certain conflicts (disputes) that have arisen or may arise between them through mediation. A mediation agreement may be concluded in the form of a mediation clause in a contract or in the form of a separate agreement; 3. An agreement (contract) based on the results of mediation is an agreement that records the result of the agreement between the parties to mediation in an oral or written form agreed between them, subject to the requirements of the law.

Conclusions. Today, the legislator allows for the settlement of natural resource disputes through mediation, in accordance with the Law of Ukraine ‘On Mediation’, but with mandatory consideration of the specifics provided for by environmental, including land, legislation.
The conceptual provision for mediation agreements should include the condition that they should not violate the rights and interests of the state, as well as the public interest or the interests of other persons not involved in the mediation. Such cases may include, for example, the interests of owners of neighbouring land plots.
In addition, it would be advisable to extend the mandatory written form for mediation agreements and agreements resulting from mediation in land disputes to agreements for mediation of other natural resources (water, forests, wildlife, etc.).
In addition, when concluding mediation agreements in relation to land resources, restrictions and encumbrances that exist in relation to the land plot should be taken into account, namely
- encumbrance of the land owner with the rights of other persons (easement, superficies, emphyteusis);
- prohibitions on use and/or disposal (prohibition on certain types of activities, change of designated purpose, condition of compliance with environmental requirements, maintenance and preservation of shelterbelts, etc;)
- restrictions established by regimes: security zones, sanitary protection zones, sanitary protection zones, zones of special land use regime, etc.
Thus, the above content of legal provisions suggests that such an institution as mediation can be fully applied for the effective resolution of natural resource disputes, taking into account the relevant specifics, for example, land legislation which considers natural objects not only as a means of production or a territorial basis, but also as a natural resource with important environmental value.