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Full-Text Articles in Law
International Rule Of Law And Constitutional Justice In International Investment Law And Arbitration, Ernst-Ulrich Petersmann
International Rule Of Law And Constitutional Justice In International Investment Law And Arbitration, Ernst-Ulrich Petersmann
Indiana Journal of Global Legal Studies
Judicial administration of justice through reasoned interpretation, application and clarification of legal principles and rules is among the oldest paradigms of constitutional justice. The principles of procedural justice underlying investor-state arbitration remain controversial, especially if confidentiality and party autonomy governing commercial arbitration risk neglecting adversely affected third parties and public interests. There are also concerns that rule-following and formal equality of foreign investors and home states may not ensure substantive justice in the settlement of investment disputes unless arbitrators and courts take more seriously their customary law obligation of settling disputes in conformity with human rights obligations of governments and …
When Procedure Moonlights As Reason, There Is Nothing Left To Abuse, Matthew E. Terry
When Procedure Moonlights As Reason, There Is Nothing Left To Abuse, Matthew E. Terry
Journal of Dispute Resolution
In Greenstreet v. Social Security Administration, when the Federal Circuit Court of Appeals could not discern exactly what basis upon which an arbitrator acted, it leapt past any presumption in favor of the arbitrator's discretion and found that what an arbitrator did not do was an abuse of his decision-making volition, just as an act beyond his prescriptive powers would have been an abuse of discretion. So, in attempting to weed out the arbitrariness in the arbitration processes that decide workplace punishments, the court heaped needless and unreasoned process squarely into the arbitrator's path, thereby greatly lessening the amount of …
The Sounds Of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration In Cases Of Contractual Silence Or Ambiguity?, S. I. Strong
Michigan Journal of International Law
Before outlining the structure of this Article, it is useful to clarify two matters regarding definitions and scope. First, in the context of this Article, an "international class award" is an award resulting from an international class arbitration. There are three different types of international class arbitrations: (1) a class arbitration that includes at least one defendant from a country other than the seat of the arbitration, which means that enforcement of an award will have international implications; (2) a class arbitration that involves defendants that may be based in the arbitral forum but that also hold significant foreign assets …
Horse Sense And High Competition: Procedural Concerns In Equestrian Doping Arbitration, Holly Rudolph
Horse Sense And High Competition: Procedural Concerns In Equestrian Doping Arbitration, Holly Rudolph
Kentucky Journal of Equine, Agriculture, & Natural Resources Law
No abstract provided.
Reverse Pre-Empting The Federal Arbitration Act: Alleviating The Arbitration Crisis In Nursing Homes, Jana Pavlic
Reverse Pre-Empting The Federal Arbitration Act: Alleviating The Arbitration Crisis In Nursing Homes, Jana Pavlic
Journal of Law and Health
In Casarotto, the Supreme Court enunciated that Montana's notice requirement conflicted with the "goals and policies of the FAA." The inequities associated with the process of pre-dispute arbitration agreements in nursing homes, however, confirm that the FAA's "goals and policies"' conflict with "accepted principles of contract law"' in this context. Long standing principles of contract law that predate the FAA, as well as basic human morality, should supersede the interests of efficiency and convenience purportedly served by the general enforceability of the statute. State case law as well as attempted state legislation already evince an underlying public policy to protect …
Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy
Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy
Journal of Dispute Resolution
Judicial review of arbitration awards is highly deferential-but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed arbitration awards. A sub-sample of forty-four employment discrimination arbitration awards under Title VII produced similar results. By comparison, federal Courts of Appeals in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.
Is It The Real Thing: How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux
Is It The Real Thing: How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux
Journal of Dispute Resolution
This article is comprised of six parts. Part I introduces the topic. Part II examines the growing prevalence of compulsory pre-dispute arbitration agreements in employment contracts and the problems with such agreements. Part III describes the challenges employees face in the federal court system: higher pleading thresholds for intentional discrimination claims, the federal judiciary's current antagonism toward employee claims of discrimination (as demonstrated by recent empirical studies), and a beleaguered EEOC. Part IV describes how Coke adopted one-way binding arbitration and explores the ways in which this alternative is preferable to both mandatory arbitration and civil litigation for employees, employers, …
Immunity And Justice For All: Has The Second Circuit Overextended The Doctrine Of Absolute Immunity By Applying It To Arbitration Witnesses, W. Monroe Bonnheim
Immunity And Justice For All: Has The Second Circuit Overextended The Doctrine Of Absolute Immunity By Applying It To Arbitration Witnesses, W. Monroe Bonnheim
Journal of Dispute Resolution
In Rolon v. Henneman, the Second Circuit Court of Appeals considered whether absolute immunity should apply to witnesses in an arbitration proceeding. The common law doctrine of absolute immunity from civil liability for judges has a long pedigree dating back to English courts. When the United States Supreme Court reaffirmed the doctrine after Congress passed 42 U.S.C. § 1983, the Court cautioned against extending the doctrine beyond judges. Since then, however, the doctrine has been extended to prosecutors and witnesses at public trials, and more recently, to arbitrators and arbitral institutions. Whether absolute immunity should be further extended to witnesses …
What's Fair Is Fair: Tribal Assertions Of Jurisdiction Over Arbitration Decisions, Matthew E. Terry
What's Fair Is Fair: Tribal Assertions Of Jurisdiction Over Arbitration Decisions, Matthew E. Terry
Journal of Dispute Resolution
While the modem trend is to provide tribes with a certain amount of latitude in some areas, the court in First Specialty Insurance Corp. v. Confederated Tribes of the Grand Ronde Community of Oregon was tasked with shoehorning the facts into the applicable precedent because the various doctrines defining the limits of tribal jurisdiction under the Federal Arbitration Act ("FAA") have not often been tested, as they were here. The district court's opinion followed the modem trend by upholding the Tribe's assertion of its court system's jurisdiction, yet the court did not establish a precedent that should trouble the notion …
Resolving The Softwood Lumber Dispute, Sarah E. Lysons
Resolving The Softwood Lumber Dispute, Sarah E. Lysons
Seattle University Law Review
This Comment argues that the London Court of International Arbitration will be able to resolve disputes involving softwood lumber but not resolve the softwood lumber dispute. Part II reviews the history of the dispute. Part III discusses the lessons that Canada and the United States have learned about resolving trade disputes, several of which are reflected in the current agreement. Part IV examines why, although the current agreement provides a degree of neutrality and finality to the dispute that prior regimes lacked, inherent political pressures will prove too large for even this agreement. Finally, Part V concludes that the dispute …