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Articles 1 - 18 of 18
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Tax And Arbitration, William W. Park
Tax And Arbitration, William W. Park
Faculty Scholarship
When fiscal measures intertwine arbitration, undue mystification sometimes follows. To enhance analytic clarity, tax-related arbitration might be divided into three parts. The first derives from ordinary commercial disputes that become laced with incidental tax questions. A corporate acquisition, for example, might carry tax consequences which in turn implicate contract claims or defences presented to an arbitral tribunal for resolution. The second genre of tax-related arbitration arises in respect of cross-border investment disputes. Rightly or wrongly, foreign investors often perceive host-country fiscal enactments as discriminatory, unfair, or tantamount to expropriation, thus violating international commitments. Finally, arbitration comes into play under income …
Bringing Transparency And Accountability (With A Dash Of Competition) To Court-Connected Dispute Resolution, Nancy A. Welsh
Bringing Transparency And Accountability (With A Dash Of Competition) To Court-Connected Dispute Resolution, Nancy A. Welsh
Faculty Scholarship
Among the various dispute resolution processes, mediation is the most widely institutionalized in American courts. As a result, this Article focuses primarily, although not exclusively, on the data collected and disseminated regarding court-connected mediation. The Article begins with a brief description of the institutionalization of mediation and other dispute resolution processes in the federal judicial system and in select U.S. state court systems. This narrative reveals substantial reference to the availability of mediation but a dizzying patchwork in terms of institutionalization and a significant lack of system-wide information in some states. The Article then focuses on the data that these …
Arbitrarily Selecting Black Arbitrators, Michael Z. Green
Arbitrarily Selecting Black Arbitrators, Michael Z. Green
Faculty Scholarship
Calls for increased diversity among arbitrators have surged with the growth of the employer movement, so-called mandatory arbitration, which requires employees to agree to arbitrate employment discrimination matters as a condition of employment. Despite good-faith efforts by neutral service providers, civil rights organizations, bar associations, and employer and employee groups to identify and address the need for more diverse arbitrators in mandatory arbitration, many commentators still lament that this diversity problem reflects negatively on access to justice. With the #MeToo movement’s focus in recent years on the lack of a public and transparent resolution for sexual harassment matters, as well …
Mediating Psychiatric Disability Accommodations For Workers In Violent Times, Michael Z. Green
Mediating Psychiatric Disability Accommodations For Workers In Violent Times, Michael Z. Green
Faculty Scholarship
Most workers in the United States are unhappy. Manifestations of that dissatisfaction can result in many workplace dilemmas when confronted with the situation of an employee dealing with mental illness. Fears of violence in our society have become prevalent with the increasing ferocity of high-profile and mass attacks in and out of the workplace. In believing mental illness contributes to some of these incidents, employers and co-workers have become extremely sensitive when a co-worker with a psychiatric disability has exhibited harassing or threatening behavior.
The Americans with Disabilities Act (ADA) was amended by the ADA Amendments Act of 2008 (ADAAA), …
Johnny Veeder Qc 1948–2020, William W. Park
Johnny Veeder Qc 1948–2020, William W. Park
Faculty Scholarship
Thirty-six years ago, with a handful of arbitration aficionados, Johnny Veeder founded Arbitration International, later providing yeoman service as the journal’s second General Editor. He pushed the journal to aim at delivery of high-quality scholarship in the English language, on a broad spectrum of topics related to resolution of cross-border disputes, both public and private.
Does The New York Convention Allow A Non-Party To An Arbitration Agreement To Use Equitable Estoppel To Compel Arbitration?, Robert Jarvis
Does The New York Convention Allow A Non-Party To An Arbitration Agreement To Use Equitable Estoppel To Compel Arbitration?, Robert Jarvis
Faculty Scholarship
No abstract provided.
Beyond Settlement: Reconceptualizing Adr As “Conflict Process Strategy”, Deborah Thompson Eisenberg
Beyond Settlement: Reconceptualizing Adr As “Conflict Process Strategy”, Deborah Thompson Eisenberg
Faculty Scholarship
“Alternative dispute resolution” or “ADR” has reached a paradoxical moment: it is both ubiquitous in practice and at risk of extinction as a distinct concept and field. As the ADR field nears middle age—nearly fifty years after the Pound Conference of 1976—“ADR” has become so popular in name, fractured in practice, and jumbled in theory that it risks a metaphorical genericide, a concept in trademark law when a product name is used to refer to so many things (incorrectly) that it becomes “generic” and confusing. Analogously, the name “ADR” has been applied to so many different processes and concepts that …
Adr: Disputing With A Modern Face, Or Bargaining For The Bargain Impaired?, Robert J. Condlin
Adr: Disputing With A Modern Face, Or Bargaining For The Bargain Impaired?, Robert J. Condlin
Faculty Scholarship
The Alternative Dispute Resolution (ADR) movement might turn out to be one of the most important chapters in the history of the American judicial system. Or, it might not. In its most grandiose form, ADR turns disputing on its head, transferring control over outcome from third-party decision-makers to the disputants themselves, and defining disputing procedure in ad hoc, party-constructed guidelines tailored to the circumstances rather than fixed, generic, and categorical rules applicable uniformly in all situations. In its less grandiose form, ADR simply institutionalizes a system of multi-party bargaining in which third-party neutrals help disputants identify individual interests and find …
The Self-Styled 'Autonomy' Of International Arbitration, George A. Bermann
The Self-Styled 'Autonomy' Of International Arbitration, George A. Bermann
Faculty Scholarship
Among international legal regimes, international arbitration has traditionally claimed for itself a remarkable degree of autonomy from other international regimes, an autonomy that enables it to enjoy a remarkable measure of self-determination. Its assertions of autonomy take a number of different forms and exhibit considerable resilience. Autonomy does allow international arbitration to develop in accordance with norms that are specific to it, but it also poses challenges that need, even for international arbitration’s own well-being, to be acknowledged and addressed.
Dispute Resolution In Pandemic Circumstances, George A. Bermann
Dispute Resolution In Pandemic Circumstances, George A. Bermann
Faculty Scholarship
The peaceful resolution of disputes is among the most important earmarks of a regime attached to the rule of law. Even in countries in which, for one reason or another, courts do not work especially well, civil peace is of paramount importance. The absence of effective institutions for the administration of justice between and among private parties would spell a high degree of social disorder.
Even in the absence of a crisis such as we are experiencing, justice systems face a number of challenges in this day and age. Does a jurisdiction have a sufficient number of persons qualified to …
Insulating A Wto Investment Facilitation Framework From Isds, George A. Bermann, N. Jansen Calamita, Manjiao Chi, Karl P. Sauvant
Insulating A Wto Investment Facilitation Framework From Isds, George A. Bermann, N. Jansen Calamita, Manjiao Chi, Karl P. Sauvant
Faculty Scholarship
The authors identify several ways in which a WTO investment facilitation framework for development can be insulated from investor-state dispute settlement provisions in international investment agreements, and suggest specific formulations in this respect.
To Ab Or Not To Ab?: Dispute Settlement In Wto Reform, Bernard M. Hoekman, Petros C. Mavroidis
To Ab Or Not To Ab?: Dispute Settlement In Wto Reform, Bernard M. Hoekman, Petros C. Mavroidis
Faculty Scholarship
Recent debates on the operation of the WTO’s dispute resolution mechanism have focused primarily on the Appellate Body (AB). We argue that this neglects the first-order issue confronting the rules-based trading system: sustaining the principle of de-politicized conflict resolution that is reflected in the negative consensus rule for adoption of dispute settlement findings. Improving the quality of the work of panels by appointing a roster of full-time professional adjudicators, complemented by reforms to WTO working practices that reduce incentives to resort to formal dispute settlement, can resolve the main issues that led to the AB crisis. Effective, coherent, and consistent …
Making Sense Of The Arbitrator’S Ruling In Ds 316 Ec And Certain Member States – Measures Affecting Trade In Large Civil Aircraft (Article 22.6-Ec): A Jigsaw Puzzle With (At Least) A Couple Missing Pieces, Petros C. Mavroidis, Kamal Saggi
Making Sense Of The Arbitrator’S Ruling In Ds 316 Ec And Certain Member States – Measures Affecting Trade In Large Civil Aircraft (Article 22.6-Ec): A Jigsaw Puzzle With (At Least) A Couple Missing Pieces, Petros C. Mavroidis, Kamal Saggi
Faculty Scholarship
“The U.S. won a $7.5 Billion award from the World Trade Organization against the European Union, who has for many years treated the USA very badly on Trade due to Tariffs, Trade Barriers, and more. This case going on for years, a nice victory”, tweeted President Trump’s on October 3, 2019. The United States (US) won not only the highest amount of retaliation ever adjudicated in the history of the WTO but also an ongoing right to retaliate on an annual basis until such time as the EU had complied by either removing the subsidies it granted Airbus or somehow …
Wto Dispute Settlement And The Appellate Body Crisis: Insider Perceptions And Members’ Revealed Preferences, Matteo Fiorini, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste, Robert Wolfe
Wto Dispute Settlement And The Appellate Body Crisis: Insider Perceptions And Members’ Revealed Preferences, Matteo Fiorini, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste, Robert Wolfe
Faculty Scholarship
The WTO dispute settlement system is in crisis, following the decision of the United States to block new appointments to the Appellate Body (AB). The AB went into hibernation in December 2019, not having enough sitting members to be able to operate. What do WTO members think of the performance of WTO dispute settlement? How much do WTO members care about the existence and operation of an appeals mechanism? In this article, we report on the results of a survey of WTO Members’ perceptions of the AB and the role it plays (should play). We complement this with data on …
Using Dispute Resolution Skills To Heal A Community, Sharon Press
Using Dispute Resolution Skills To Heal A Community, Sharon Press
Faculty Scholarship
On July 6, 2016, Philando Castile, an African-American male, wasshot and killed by a police officer during a traffic stop in Falcon Heights, Minnesota. In the aftermath of this shooting, there were several challenging meetings of the City Council where protestors demanded answers. In response,the Mayor of Falcon Heights reached out to dispute resolution professionals to help him design a two-track process which included a Task Force to propose policy changes to the City Council and a Community Conversations series to provide an opportunity for healing.
In this article, I will describe the process design for the community conversations, the …
Stakeholder Preferences And Priorities For The Next Wto Director General, Matteo Fiorini, Bernard Hoekman, Petros C. Mavroidis, Douglas Nelson, Robert Wolfe
Stakeholder Preferences And Priorities For The Next Wto Director General, Matteo Fiorini, Bernard Hoekman, Petros C. Mavroidis, Douglas Nelson, Robert Wolfe
Faculty Scholarship
The WTO is looking for a new Director-General (DG). What does the trade community think is needed? This paper reports on the results of an expert survey undertaken as part of a research project on global trade governance at the European University Institute to solicit views on what WTO members and the international trade community consider the most important attributes of candidates for the position, as well as views on the substantive policy and institutional reform priorities confronting the WTO – and thus the new DG. The results suggest strong support for someone with managerial and political experience, and a …
Costs Allocation In International Arbitration: What Normative Source, If Any?, George A. Bermann
Costs Allocation In International Arbitration: What Normative Source, If Any?, George A. Bermann
Faculty Scholarship
Costs in arbitration is one of those many issues that arises constantly (at least in any arbitration that gets underway), but as to which there is by no means any universally accepted standard of judgment. It is also not particularly usual for parties to address the issue of costs directly in their arbitration agreement, or for the matter to be addressed in the law of arbitration of the seat. If the rules of arbitral procedure that the parties may have incorporated into their arbitration agreement address the matter, they may not do so in highly informative terms. The Rules of …
Preventing The Bad From Getting Worse: The End Of The World (Trade Organization) As We Know It?, Bernard Hoekman, Petros C. Mavroidis
Preventing The Bad From Getting Worse: The End Of The World (Trade Organization) As We Know It?, Bernard Hoekman, Petros C. Mavroidis
Faculty Scholarship
Recent survey evidence and proposals made in long-running negotiations to improve WTO dispute settlement procedures illustrate that many stakeholders believe the system needs improvement. The Appellate Body crisis could have been avoided but for the use of consensus as WTO working practice. Resolving the crisis should prove possible because the matter mostly concerns a small number of more powerful WTO members. We make several proposals to revitalize the WTO appellate function but argue that unless the WTO becomes a locus for new rulemaking, re-establishing the appellate function will not prevent a steady decline in the salience of the organization. A …