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Articles 1 - 30 of 55
Full-Text Articles in Law
The Use Of Arbitration Clauses By Social Media Websites: A Critique, Kavya Jha, Ananya Singh
The Use Of Arbitration Clauses By Social Media Websites: A Critique, Kavya Jha, Ananya Singh
Pepperdine Dispute Resolution Law Journal
The arbitration clauses contained in the Terms of Services (ToS) of most social media websites mandate arbitration and the waiver of class arbitration.1 In light of this reality, this article seeks to analyze the legal position with respect to mandatory arbitration and class arbitration waiver in the United States, India, and European Union (EU). It compares and juxtaposes the respective positions in these three jurisdictions to find that whereas the United States has been pro-arbitration to the extent of being detrimental to consumer interest, India has adopted an overly protectionist approach, while the EU has adopted an effective model to …
Commercial Mediation In Mainland China: Pitfalls & Opportunities, Meng Chen
Commercial Mediation In Mainland China: Pitfalls & Opportunities, Meng Chen
Pepperdine Dispute Resolution Law Journal
This article offers insight into the practice of Chinese mediation, especially in resolving commercial disputes, considering the United Nations Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention) entered into force on September 12, 2020. First, this article evaluates the attractiveness, vulnerabilities, and popularity of mediation as a means of dispute resolution. The article then introduces the Chinese model of using mediation to resolve commercial disputes, specifically in judicial and arbitral proceedings. Based on empirical data and rules analysis, this article concludes with the benefits of using mediation in China to resolve disputes and exposes a discrepancy between …
Designing Responsive Legal Systems: A Comparative Study, Nofit Amir, Michal Alberstein
Designing Responsive Legal Systems: A Comparative Study, Nofit Amir, Michal Alberstein
Pepperdine Dispute Resolution Law Journal
The drive for efficiency has caused many legal systems to redesign themselves, creating multiple paths for dispute resolution and incorporating settlement-promoting tools into the judicial role. However, as this study shows, legal systems have taken divergent approaches as they redesign themselves to accommodate settlement practices, leading to widely disparate results. This study probes the paths taken by three countries’ legal systems—England and Wales (common law), Israel (mixed), and Italy (continental law)—drawing on court docket analyses, courtroom observations, and interviews with judges in the three legal systems. It uncovers central points of divergence—emphasized stage of dispute resolution, separation vs. combination of …
Legal Lying?, Robert Angyal, Nicholas Saady
Legal Lying?, Robert Angyal, Nicholas Saady
Pepperdine Dispute Resolution Law Journal
Mediation has become very common in the USA and Australia—at least partly because of court-mandated mediation initiatives. Lawyers often represent clients at mediations, so the increased use of mediation makes it important to understand how both jurisdictions regulate lawyers’ advocacy on behalf of their clients during mediation. This article comparatively analyzes how professional standards regulate the truthfulness of lawyers’ advocacy during mediation in Australia and the United States. It focuses on uniform regulation in those jurisdictions. Part One will comparatively analyze the relevant regulations in Australia and the United States, and the types of obligations contained in those regulations—for example, …
The Faux Pas Of Automatic Stay Under The Indian Arbitration Act, 1996 - The Hcc Dictum, Two-Cherry Doctrine, And Beyond, Sai Ramani Garimella, Gautam Mohanty
The Faux Pas Of Automatic Stay Under The Indian Arbitration Act, 1996 - The Hcc Dictum, Two-Cherry Doctrine, And Beyond, Sai Ramani Garimella, Gautam Mohanty
Pepperdine Dispute Resolution Law Journal
In the matter of Hindustan Construction. Co. v. Union of India, the Honorable Supreme Court of India (“SCI”) was presented with an opportunity to adjudicate upon a petition challenging the constitutional validity of Section 87 of the Arbitration and Conciliation Act of 1996 (“1996 Act”) as inserted by Section 13 of the Arbitration and Conciliation (Amendment) Act of 2019 (“2019 Act"). The legislative insertion stated that amendments made to the 1996 Act by the Arbitration and Conciliation Act of 2015 (“2015 Act”) would not apply to court proceedings arising out of, or in relation to, arbitral proceedings initiated before the …
Interpretation Of Pathological Arbitration Agreements: Non-Existing And Inaccessible Elements, Morten Frank
Interpretation Of Pathological Arbitration Agreements: Non-Existing And Inaccessible Elements, Morten Frank
Pepperdine Dispute Resolution Law Journal
In the following, I will initially present the terminological and analytical framework for handling pathological arbitration agreements (Part II). Against this background, I will analyze case law from USA (Part III), Singapore and Hong Kong (Part IV), and England (Part V) in order to establish under which circumstances Solution 1, Solution 2 and Solution 3 apply in respect of arbitration agreements containing non-existing and inaccessible elements. Finally, Part VI considers an adjoining—although fundamentally different—interpretation situation across jurisdictions. Part VII provides a summary as well as concluding remarks on the drafting of arbitration agreements.
The Use Of Alternative Dispute Resolution To Reduce The Perception Of Partiality In The Courts, In Order To Encourage International Entrepreneurship In Countries With National Ownership Requirements, Daniela Romagnoli
Pepperdine Dispute Resolution Law Journal
Countries that require international entrepreneurs to have a national partner (national ownership requirements (NOR)) in order to open up a new venture within their borders, run the risk of becoming less desirable to do business in. One reason for this is that some investors and international entrepreneurs may be wary of possible conflict being solved in a court system that shows a positive bias towards its citizens. This paper looks at the experiences of five international entrepreneurs involved in small and medium-size enterprises (SMEs) in Kenya and explores how their experiences have become a warning to others who see potential …
An Empirical Study Of Reforming Commercial Arbitration In China, Mimi Zou
An Empirical Study Of Reforming Commercial Arbitration In China, Mimi Zou
Pepperdine Dispute Resolution Law Journal
This paper examines recent reforms to the regulatory and institutional framework of commercial arbitration in China, based on an empirical study conducted between 2018 and 2019 of semi-structured interviews with over 80 actors, including Chinese lawmakers and policymakers, judges, arbitration institutions, legal practitioners, academic researchers, and companies and users of arbitration. The author has also consulted a variety of primary materials including publicized laws, regulations and policies, official reports, data and statistics, and internal guidelines and policy documents of the various actors that were interviewed for this study.
Statements Of The Arbitration Decision According To Jordanian Law And French Law “A Comparative Study”, Noor Issa Al-Hendi
Statements Of The Arbitration Decision According To Jordanian Law And French Law “A Comparative Study”, Noor Issa Al-Hendi
Pepperdine Dispute Resolution Law Journal
This study deals with the statements of the arbitration decision in a comparative study between the Jordanian arbitration law and the French Procedures law, by revising the legal texts related to specific statements required in the arbitration decision, according to each of them. This study also clarifies the implications of the omissions of these statements n in the arbitration decision.
Israeli Perspectives On Alternative Dispute Resolution And Justice, Omer Shapira
Israeli Perspectives On Alternative Dispute Resolution And Justice, Omer Shapira
Pepperdine Dispute Resolution Law Journal
Israel is a highly litigious country with an overburdened legal system infected with delays. In addition, Israeli society is highly diversified and saturated with social disagreements and rifts between groups. This article identifies two concepts of justice in ADR discourse in Israel—Justice as Efficiency and Justice Beyond Efficiency—and illustrates their application in the context of several ADR developments in the court system, community mediation, the education system, environmental conflicts, and complaints against public bodies. Using these visions of justice, the article explores the justice goals of ADR in Israel, assesses whether they have been achieved, and considers the future of …
Can Restorative Justice Processes Help Improve Plea Bargaining In Uganda’S Criminal Justice System?, Hannah Gray
Can Restorative Justice Processes Help Improve Plea Bargaining In Uganda’S Criminal Justice System?, Hannah Gray
Pepperdine Dispute Resolution Law Journal
No abstract provided.
Dispute Resolution Mechanisms: An Analysis Of The Indus Waters Treaty, Waseem Ahmad Qureshi
Dispute Resolution Mechanisms: An Analysis Of The Indus Waters Treaty, Waseem Ahmad Qureshi
Pepperdine Dispute Resolution Law Journal
Since India and Pakistan’s independence in 1947, both states have fought over the occupied territories of Kashmir to gain control of water supplies, which are strategically valuable. Even in recent times, the countries are facing constant threats from each other over several separate issues. India and Pakistan’s water conflicts are long-standing and relate to Indian infrastructure on the western tributaries. Pakistan is of the view that India is robbing Pakistan’s water supplies and building its water management capacity only as a political maneuver to gain political supremacy by practicing hydro-hegemony. On the other hand, India maintains that it is only …
Uniting Foes Of A Single Nation: Religious Dispute Resolution For India And Pakistan, Abraham Reinherz
Uniting Foes Of A Single Nation: Religious Dispute Resolution For India And Pakistan, Abraham Reinherz
Pepperdine Dispute Resolution Law Journal
This article will bring forth the argument that a religious-based dispute resolution mechanism should be employed to, at a bare minimum, build bridges between the two countries that are dominated by Hinduism and Islam. This article is not suggesting that religious-based dispute resolution will be a panacea to the India-Pakistan conflict, but simply a method of putting the countries on a step towards reconciliation. Section II of the article will detail the historical background of the conflict. Section III will highlight existing ADR in both India and Pakistan. Section IV will go over the Islamic perspective on dispute resolution. Section …
A Realist Systematic Review Of Cross-Sector Collaboration Implementation In Developing Countries & Mediation As A Useful Instrument, Jessica Kritz
A Realist Systematic Review Of Cross-Sector Collaboration Implementation In Developing Countries & Mediation As A Useful Instrument, Jessica Kritz
Pepperdine Dispute Resolution Law Journal
This review will provide a realistic systematic review to synthesize evidence on successful cross-sector collaboration implementation in developing (low and middle income) countries. More specifically, this review will explicitly consider interactions between strategy, context, and mechanisms to provide an indication as to how cross-sector collaboration governance helps some cross-sector collaboration succeed, grow, and become sustainable. This paper will also present mediation as potentially a useful mechanism to implement cross-sector collaboration implementation in developing countries.
Environmental Restorative Justice, Aiden Stark
Environmental Restorative Justice, Aiden Stark
Pepperdine Dispute Resolution Law Journal
Section I briefly introduces this article. Section II discusses the gravity of environmental crimes. Section III highlights the history of environmental criminal prosecution. Section IV explains how environmental crimes are currently prosecuted. Section V demonstrates how restorative justice procedures work. Section VI critiques the only previous analysis applying restorative justice to environmental crimes in the United States. Section Vll walks through Australian Justice Preston's analysis, which provides a proper foundation for applying restorative justice to environmental crimes. Section VIII applies Justice Preston's framework to criminal procedures in the United States. Section IX discusses criticisms that will be raised by bringing …
Public Policy Exception In Enforcement Of Foreign Judgments: Setting Aside An Award In The Country Of The Seat Of Arbitration, Amir Seyedfarshi
Public Policy Exception In Enforcement Of Foreign Judgments: Setting Aside An Award In The Country Of The Seat Of Arbitration, Amir Seyedfarshi
Pepperdine Dispute Resolution Law Journal
American courts may enforce and recognize international commercial arbitral awards pursuant to the New York Convention. An arbitral award can be subject of scrutiny before the courts of the country of the seat of arbitration and courts of the seat of arbitration may annul an award. Once an award is annulled, the question is whether a decision to annul an award renders it void, or a court outside of the seat of arbitration may refuse to enforce the judgment annulling the award and enforce the award. Courts may treat the judgment annulling an award as a judgment for the purpose …
Stopping The Madman: Lessons From The Kaesong Industrial Complex, Sei Hee Park
Stopping The Madman: Lessons From The Kaesong Industrial Complex, Sei Hee Park
Pepperdine Dispute Resolution Law Journal
Section I briefly introduces the Kaesong Industrial Complex, and its closure and reopening. Section II looks at the history of North and South Korea that has set up the current tension between the nations. Section III highlights the significance of the KIC to the two Koreas' relationship. Section IV then explores North Korea's behavior over the years, intertwining discussion of Thomas Schelling's "Madman Theory" to describe North Korea's growing unpredictability and irrationality. Section V provides suggestions for how South Korea can appease North Korea's erratic behavior, as exemplified by their actions during the KIC negotiations. Section VI concludes.
Korea's "Bali Bali" Growth In International Arbitration, Grant L. Kim
Korea's "Bali Bali" Growth In International Arbitration, Grant L. Kim
Pepperdine Dispute Resolution Law Journal
No abstract provided.
The Recognition And Enforcement Of Foreign Arbitral Awards In Korea: With Focus On The U.S. Matters, Yong-Beum Jahng, Ryul Kim
The Recognition And Enforcement Of Foreign Arbitral Awards In Korea: With Focus On The U.S. Matters, Yong-Beum Jahng, Ryul Kim
Pepperdine Dispute Resolution Law Journal
No abstract provided.
A Bellwether To Korea's New Frontier In Investor-State Dispute Settlement?: The Moscow Convention And Lee Jong Baek V. Kyrgyz Republic, Joongi Kim
Pepperdine Dispute Resolution Law Journal
This article will first seek to provide an overview of the state of play of Korea’s ISDS regime. It will discuss the historic nature of the recent cases that have contributed to a critical mass of ISDS actions involving the Korean state as the respondent and Korean investors as claimants. The article will then provide analysis of the Moscow Convention with particular focus concerning its special provisions. After examining the Lee Jong Baek Award, it then explores the potential ramification of the recent cases to Korea’s ISDS policy. It suggests that these cases may represent a tipping point in Korea-related …
Surveying The Landscape Of Conflict Management, Tom Stipanowich, J. Kwang Ho Lim, E. Y. Park, Beomsu Kim, Joongi Kim
Surveying The Landscape Of Conflict Management, Tom Stipanowich, J. Kwang Ho Lim, E. Y. Park, Beomsu Kim, Joongi Kim
Pepperdine Dispute Resolution Law Journal
No abstract provided.
The Emergence Of Mediation In Korean Communities, Peter Robinson, J. Youngjin Lee, J. Kwang Ho Lim, Ryul Kim
The Emergence Of Mediation In Korean Communities, Peter Robinson, J. Youngjin Lee, J. Kwang Ho Lim, Ryul Kim
Pepperdine Dispute Resolution Law Journal
No abstract provided.
Korean Perspectives On Trade And Investment Multilateral Agreements And Dispute Resolution, Lucy Reed, E. Y. Park, Joongi Kim, Beomsu Kim, Kevin Kim
Korean Perspectives On Trade And Investment Multilateral Agreements And Dispute Resolution, Lucy Reed, E. Y. Park, Joongi Kim, Beomsu Kim, Kevin Kim
Pepperdine Dispute Resolution Law Journal
No abstract provided.
Korea's Emerging Importance In The Practice Of International Commercial Arbitration, Jack J. Coe, E Y. Park, Grant Kim, Kevin Kim
Korea's Emerging Importance In The Practice Of International Commercial Arbitration, Jack J. Coe, E Y. Park, Grant Kim, Kevin Kim
Pepperdine Dispute Resolution Law Journal
No abstract provided.
Designing A Court-Annexed Mediation Program For Civil Cases In Brazil: Challenges And Opportunities, Fernando Vieira Luiz
Designing A Court-Annexed Mediation Program For Civil Cases In Brazil: Challenges And Opportunities, Fernando Vieira Luiz
Pepperdine Dispute Resolution Law Journal
In this article, I demonstrate that mediation is an important form of dispute resolution, displaying benefits when compared with adjudication. I try to refine what mediation is by contrasting it with judicial settlement conferences and conciliation. Regarding the ongoing process in Brazil, I state that every society should adapt a mediation program that is attainable for its social-economic and cultural reality. Criticizing the current Brazilian policies, I present the positive and negative aspects of the Resolution No. 125 of the National Council of Justice (CNJ), analyzing a possible program design feasible for the country, focusing on the issues of funding, …
Growing Pains And Coming-Of-Age: The State Of International Arbitration In India, Jory Canfield
Growing Pains And Coming-Of-Age: The State Of International Arbitration In India, Jory Canfield
Pepperdine Dispute Resolution Law Journal
The article offers information on the history, development and significance of international arbitration in India. It analyzes the decision of the Indian Supreme Court in the case of Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., which marks the era of major changes in Indian law regarding international arbitration. It mentions that development of Indian arbitration law enhances global standards and attitudes toward international dispute resolution in India.
Blending The Law, The Individual, And Traditional Values To Create An Effective Adr System: A Study On The Adr Processes In Rwanda And Nicaragua, Sarah Yance
Pepperdine Dispute Resolution Law Journal
This article offers information on the history, development and significance of the adoption and implementation of the alternative dispute resolution (ADR) techniques in Nicaragua and Rwanda. The ADR system addresses the issues of women and children suffering from domestic abuse and from the repercussions of the Rwandan Genocide and helps in rebuilding and restoring traditional values of family and community in the context of human rights.
Mediation As The Key To The Successful Transfer Of The Case Of Jean-Bosco Uwinkindi From The Jurisdiction Of The Ictr To The Republic Of Rwanda, Taylor Friedlander
Mediation As The Key To The Successful Transfer Of The Case Of Jean-Bosco Uwinkindi From The Jurisdiction Of The Ictr To The Republic Of Rwanda, Taylor Friedlander
Pepperdine Dispute Resolution Law Journal
The article discusses on the history of the Rwanda Genocide of 1994 and the International Criminal Tribunal for Rwanda (ICTR) and different systems of justice that should be involved in prosecuting Jean Bosco Uwinkindi, the suspect of the mass killing at the Rwanda Genocide. It also mentions that three separate processes undertaken in Uwinkindi's gacaca court hearings, including truth-telling, truth-hearing, and truth-shaping.
The English Approach To Compétence-Compétence, Ozlem Susler
The English Approach To Compétence-Compétence, Ozlem Susler
Pepperdine Dispute Resolution Law Journal
The article examines the Great Britain legislation and practice in compétence-compétence and provides an overview of British approach to arbitral jurisdiction. It states that there are two effects of the principle of compétence-compétence, the positive effect permit arbitral tribunals to make a ruling on their own jurisdiction to hear the dispute and negative effect restricts court to provide the tribunal an opportunity to determine its own jurisdiction.
The Philosophical Underpinning And General Workings Of Chinese Mediation Systems: What Lessons Can American Mediators Learn?, Kevin C. Clark
The Philosophical Underpinning And General Workings Of Chinese Mediation Systems: What Lessons Can American Mediators Learn?, Kevin C. Clark
Pepperdine Dispute Resolution Law Journal
Of the various ADR processes available to the disputant seeking ADR, mediation has arguably become the "process choice of today" because -it is a very dynamic, user-friendly process" with a high success rate. Despite its recent successes, however, mediation is not a modern creation. It has been used for centuries in places all around the world. One of these places is China. This article introduces the reader to the philosophical underpinnings of the Chinese legal system as it relates to mediation and the general workings of the Chinese mediation model. It is the author's thesis that as western nations enthusiastically …