Law Commons^™

Natural Forum And The Elusive Significance Of Jurisdiction Agreements, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

The Singapore court's power to stay its proceedings by reason of its not being the appropriate forum the proceedings ought not to be continued is underpinned by the common law principle enunciated in The Spiliada that generally a trial should be heard in its natural forum. The Rainbow Joy adds significantly to Singapore law on forum non conveniens on two important points. First, it establishes that it is not necessary to show that the alternative forum abroad is constituted as a court of law. Secondly, the case establishes that whether there is a defense claim on the merits is an …

Fishing For Adr, David Bryson, Nadja Alexander

Research Collection Yong Pung How School Of Law

As the mediation field in Australia and abroad flourishes, so too do publications on the topic. However a plethora of publications has consequences for any academic and professional field. On one hand it means that readers are indulged with a rich array of information, views and opinions; on the other it requires readers to be much more sophisticated and discriminatory in their choice of reading.

Summary Of Nelson V. Heer, 121 Nev. Adv. Op. 81, Denise Balboni

Nevada Supreme Court Summaries

Motion to support a stay pending an appeal by security other than a supersedeas bond.

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble:" A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N. C. Smalkin

Faculty Scholarship

Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary’s “loss of focus” on the core function of trying jury cases; the business community’s loss of interest in jury adjudication (“opting out of the legal system altogether” in favor of arbitration); Congress’s “marginalizing the district court judiciary”; and …

Wrong-Sizing International Justice? The Hybrid Tribunal In Sierra Leone, Chandra Lekha Sriram

Faculty Scholarship

As institutions of international justice proliferate, so do disputes about their legitimacy, and about what shape they ought to take. As truly international tools such as the International Criminal Court and the exercise of universal jurisdiction face political and practical challenges, some scholars and practitioners have advocated a distinct institutional solution: the hybrid court. These are courts that are neither purely national nor international, but rather that pursue accountability in the country where abuses and crimes occurred, but with both national and international staff, and utilizing a mixture of national and international law. Many have suggested that these tribunals represent …

Summary Of Wood V. Safeway, Inc., 121 Nev. Adv. Op. 73, Michael Shalmy

Nevada Supreme Court Summaries

A mentally handicapped female working for Safeway Stores, Inc. was sexually assaulted at work by an employee of a company that provided janitorial services for Safeway. The assaults occurred in a storage room and in the parking lot while she was gathering shopping carts. She filed a complaint against Safeway and the janitorial company, Action Cleaning, alleging five causes of action as a result of the sexual assault. The district court granted summary judgment in favor of Safeway, determining that Safeway was immune from suit because of coverage provided by the Nevada Industrial Insurance Act (the “NIIA”). The district court …

Re Aliant Telecom Inc And Ac & Twu (Macdonald), Innis Christie

Innis Christie Collection

Union Grievance 04-01, dated July 21, 2004, on behalf of the Grievor, Robert MacDonald, alleging that the Employer discharged the Grievor in violation of Article 2.1 of the Collective Agreement between the parties effective January 1, 1999 — January 1, 2002, which the parties agree is the Collective Agreement applicable here. At the outset of the hearing in this matter the parties agreed that I am properly seized of it, that I should remain seized after the issue of this award to deal with any matters arising from its application and that all time limits, either pre-or post-hearing, are waived. …

International Decisions: Occidental Exploration And Production Company V. The Republic Of Ecuador, Susan Franck

Articles in Law Reviews & Other Academic Journals

Occidental v. Ecuador is the first claim under a bilateral investment treaty claim involving tax issues. This case comment analyzes the tribunal's award and offers a critique of both the analysis and the conclusion. This comment suggests that the tribunal may have gone further than necessary in its analysis of arbitrary measures impairing investment, failed to engage in a sector-by-sector analysis of national treatment, and compressed the analysis of separate rights into one broad test for evaluating fair and equitable treatment. The comment concludes that Occidental may best be understood as confined to its unique facts lest there be larger …

Market Solutions To Market Problems: Re-Examining Arbitral Immunity As A Solution To Unfairness In Securities Arbitration, Peter B. Rutledge

Scholarly Works

This paper addresses the fairness of securities arbitrations in the United States. A few decades ago, such a topic would have been relegated to the academic hinterlands. For the first fifty years following the enactment of the nation's securities laws, pre-dispute arbitration agreements between investors and the securities industry were not enforceable. In a series of decisions in the late 1980s, the Supreme Court reversed course and held that such disputes were indeed arbitrable. Following those decisions, arbitration quickly became the preferred method of dispute resolution for cases arising under the nation's securities laws, especially disputes between investors and broker-dealers. …

The Promise And Perils Of Collaborative Law, John M. Lande

Faculty Publications

Getting people to use an interest-based approach in negotiation has been a difficult problem. Experts provide helpful suggestions for changing the game, though these are usually limited to case-by-case efforts within a culture of adversarial negotiation. Collaborative law (CL) is an important innovation that establishes a general norm of interest-based negotiation and intentionally develops a new legal culture. This article describes CL's promise and potential perils, focusing particularly on the perils to complement the literature touting the promise.

The Nature And Enforcement Of Investor Rights Under Investment Treaties: Do Investment Treaties Have A Bright Future, Susan Franck

Articles in Law Reviews & Other Academic Journals

The number of investment treaties has surged in the past decade. Even now, the United States and Canada are actively engaged in programs designed to facilitate the completion of multilateral treaties such as the Dominican Republic-Central American Free Trade Agreement (CAFTA-DR) and Bilateral Investment Treaties (BITs). These investment treaties act like economic bills of rights, which grant foreign investors substantive protections and procedural rights to facilitate investment. Sovereigns, meanwhile, may benefit from these treaties by obtaining increased foreign direct investment, which may promote the development of their country's infrastructure 6 and offer citizens basic services including access to clean water, …

Summary Of Whealon V. Sterling, 121 Nev. Adv. Op. 66, Jarrod Rickard

Nevada Supreme Court Summaries

Appellant agent sought review of a summary judgment from the Eighth Judicial District Court, which ruled in favor of respondent entertainer in a contract dispute.

Summary Of Szydel V. Markman, 121 Nev. Adv. Op. 47, Hagar Labouz

Nevada Supreme Court Summaries

Appellant Szydel brought a medical malpractice claim against Dr. Markman after he left a surgical needle inside her breast following a surgical procedure. Szydel and her husband filed a malpractice claim in district court and Dr. Markman moved to dismiss because the complaint was not accompanied by a medical expert’s affidavit, as required by statute. Szydel claimed that her action was filed under Nevada’s res ipsa loquitur statute and thus did not require a medical expert’s affidavit.

Summary Of Kahn V. Morse & Mowbray, 121 Nev. Adv. Op. 48, Hagar Labouz

Nevada Supreme Court Summaries

This action arises out of a business agreement between the Kahns and their son, Eric. The Kahns violated the agreement with Eric by selling their business to their other son, Frank. The Kahns hired Byrd and his firm, Morse & Mowbray, to represent them. Shortly thereafter the parties reached a settlement, and the Kahns reneged on the settlement. Eric filed an action against the Kahns for specific enforcement of the settlement and Byrd and his firm declined to contest Eric’s contentions regarding the settlement. The district court held a hearing for specific enforcement of the settlement and found that all …

Summary Of Lee V. Ball, 121 Nev. Adv. Op. 38, Jared R. Gibb

Nevada Supreme Court Summaries

This case involved an appeal from a district court judgment in a personal injury case, entered pursuant to a jury verdict which initially awarded the plaintiff $1,300 in damages. The plaintiff subsequently requested a new trial or, in the alternative, additur. The district court awarded the plaintiff an additur of $8,200 and prejudgment interest, without offering the defendant a new trial on damages.

Re Sisters Of Saint Martha And Caw, Local 2017, Innis Christie

Innis Christie Collection

The Grievor believes the Employer should apply the terms of the Labour Standards Code, instead of the less generous Collective Agreement, regarding holiday pay. The Employer paid holiday pay according to the Agreement and believes the grievance should be dismissed.

The grievance fails. The Code does not apply to the employees under the Agreement.

Re Provincial Health Services Authority And Peiupse, Innis Christie

Innis Christie Collection

Grievance by the Union alleging wrongful dismissal of the Grievor, based on allegations of physical abuse of a patient in one of the Employer's health care facilities. The Union has requested pre-hearing production of various documents in the medical file of the patient who made the allegations. The Employer has refused production based mainly on the P.E.I. Mental Health Act, R.S.P.E.I. 1988, c. M-6.1. The parties have agreed that the whether the Employer can and should be ordered to produce the documents in issue is to be decided by the Chair of the Board of Arbitration estab­lished to deal with …

Summary Of Matter Of Harrison Living Trust, 121 Nev. Adv. Op. 26, Jarrod Rickard

Nevada Supreme Court Summaries

An appeal challenging a district court decision denying the petition of a trust beneficiary asking for an order surcharging the trustee for breach of fiduciary duty in distributing assets according to court order that the trustee knew was void.

Re Provincial Health Services Authority And Cupe, Loc 805, Innis Christie, B Crockett, S Robinson

Innis Christie Collection

Grievance by the Union alleging breach of Article 20.1, and any other applicable articles, of the Collective Agreement between the Union and the Employer effective April 1, 2001 - March 31, 2004, which the parties agreed is the Collective Agreement that governs this matter, in that, when Ronald Smith, a Physio Aide, retired the Employer failed to post that position.

Re Provincial Health Services Authority And Peiupse, Innis Christie

Innis Christie Collection

Grievance by the Union alleging wrongful dismissal of the Grievor, based on allegations of physical abuse of a patient in one of the Employer's health care facilities. The Union has requested pre­hearing production of various documents in the medical file of the patient who made the allegations. The Employer has refused pro­duction based on the P.E.I. Mental Health Act, R.S.P.E.I. 1988, c. M-6.1. The parties have agreed that the issue of whether the Employer can and should be ordered to produce the documents in issue is to be decided by the Chair of the Board of Arbitration estab­lished to deal …

Re Canada Post Corp And Cupw, Innis Christie

Innis Christie Collection

A previous Grievance which alleged improper staffing was successful and resulted in an Award which required that the affected employees receive an offer for the positions they would have had if filled properly. The Arbitrator retained jurisdiction regarding the implementation of the Award. A subsequent hearing regarding the Grievor resulted in an order to offer her the position she had been denied. The Grievor accepted the position, but with her own conditions. This hearing is to consider if she accepted the position or, by adding conditions, rejected the offer.

12th Biennial Judge Joe Lee Bankruptcy Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 12th Biennial Judge Joe Lee Bankruptcy Institute held May 2005.

Summary Of Aviation Ventures, Inc. V. Joan Morris, Inc., 121 Nev. Adv. Op. 13, 110 P.3d 59, Bryce Loveland

Nevada Supreme Court Summaries

No abstract provided.

Assessing The Case For Employment Arbitration: A New Path For Empirical Research, David Sherwyn, Samuel Estreicher, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Shifting The Focus From The Myth Of "The Vanishing Trial" To Complex Conflict Management Systems, Or I Learned Almost Everything I Need To Know About Conflict Resolution From Marc Galanter, John M. Lande

Faculty Publications

To say that The Vanishing Trial is a myth is not to suggest that the facts or analysis in Professor Marc Galanter's seminal report on the vanishing trial are fictional or inaccurate. Indeed, he marshals a massive amount of data to show that the number of trials and the trial rates have been declining for the past four decades, particularly in the federal courts. The report documents an apparent paradox: the proportion of cases going to trial has dropped sharply during the past forty years despite substantial increases in many other legal indicators including the number of lawyers, the number …

Democracy And Dispute Resolution: Systems Design And The New Workplace, Richard C. Reuben

Faculty Publications

There has been growing discussion in law reviews and business journals about the so-called new workplace, which is distinguished from the old, in part, by greater employee mobility and job flexibility. This article extends that discussion by exploring the implications of the new workplace for the design of dispute resolution systems. In particular, it argues that the structure and values of the new workplace correspond to the essential values of democratic governance, and that dispute resolution should be integrated into the new workplace in a way that enhances rather than diminishes these core democratic values. As I have articulated in …

A Common Tragedy: Promises To Benefit The Public Interest And The Enforceability Problem, Irma S. Russell

Faculty Works

No abstract provided.

Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben

Faculty Publications

Scholars have approached arbitration, especially under the Federal Arbitration Act, from a variety of perspectives, including doctrinal, historical, empirical, and practical. One aspect that has not yet been fully considered, however, is the relationship between arbitration and constitutional democracy. Yet, as a dispute-resolution process that is often sanctioned by the government, that sometimes inextricably intertwines governmental and private conduct, and that derives its legitimacy from the government, it is appropriate--indeed, our responsibility--to ask whether arbitration furthers the goals of democratic governance. It is only sensible that state-supported dispute resolution in a democracy should strengthen, rather than diminish, democratic governance and …

The Immorality Of Denial, Jonathan R. Cohen

UF Law Faculty Publications

This article is the first of a two-part series critically examining the role of lawyers in assisting clients in denying responsibility for harms they have caused. If a person injures another, the moral response is for the injurer actively to take responsibility for what he has done. In contrast, the common practice within our legal culture is for injurers to deny responsibility for harms they commit. The immoral, in other words, has become the legally normal. In this Article, Professor Cohen analyzes the moral foundations of responsibility-taking. He also explores the moral, psychological, and spiritual risks to injurers who knowingly …

Eyes On The Prize: The Struggle For Professionalism, Nancy A. Welsh, Bobbi Mcadoo

Faculty Scholarship

Article Extract:

A mere fifteen years ago, the term mediation was confused regularly with meditation. Much has changed. The courts, frequently derided as overcrowded and expensive for individual litigants and the public, now rely on mediation to resolve cases and reduce dockets. Attorneys and judges are advocates; many have become mediators themselves.

Disputants generally express satisfaction with the process. It is not surprising that mediation-along with other ADR processes-has achieved institutionalization in the courts, public agencies and the private and nonprofit sectors.

We are now embarking on the next stage: professionalization. There are increasing references to "dispute professionals" or "professional …