Law Commons^™

Should The European Union Fix, Leave Or Kill The Energy Charter Treaty?, Martin Dietrich Brauch

Columbia Center on Sustainable Investment Staff Publications

In the early 1990s, the European Economic Community – the predecessor of the European Union (EU) – spearheaded an initiative to promote international cooperation in the energy sector, particularly with post-Soviet States in Eastern Europe and Central Asia. Out of this process the Energy Charter Treaty (ECT) was born in 1994. Going much beyond international cooperation, the treaty allows foreign investors in the energy sector to sue their host States in international arbitral tribunals and claim monetary compensation when policy measures and other State action affect their interests.

Fast-forward to 2021. With 135 known cases initiated to date, the ECT’s …

Recommendations To Develop International Commercial Mediation In Singapore, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the recommendations of a Working Group established in April 2013 by Singapore’s Chief Justice and the Ministry of Law to transform and develop its international commercial mediation sector are presented.

Introduction To Symposium On "Adr's Place In Navigating A Polarized Era", Nancy A. Welsh

Faculty Scholarship

Ours is a nation built for conflict, for friction. Such conflict, while painful, can be good. It can signal newfound agency, and it can be a catalyst for dialogue, customized and creative solutions, and ultimately progress. This is what many dispute resolution academics teach their students. But we are caught in such an extraordinarily polarized time, and many wonder what role ADR can and should play in navigating a polarized era. That was the question addressed by Texas A&M School of Law's March 2020 symposium, with the resulting articles - by Baruch Bush & Peter Miller, Jonathan Cohen, Jill DeTemple, …

Adr Empirical Research Studies (Summer 2013-Fall 2022), James Coben, Donna Stienstra

ADR Empirical Research Studies

No abstract provided.

Enemy At The Gates: Online Dispute Resolution In The Time Of Covid-19, Justin Monahan

Law in a Post-Pandemic World

At one time, Online Dispute Resolution (ODR) was considered the future of dispute resolution. With the arrival of COVID-19, the future has rushed up to meet us. Even before the pandemic, the benefits of ODR—convenience, comfort, efficiency, and more equal power distribution—were gradually increasing its popularity. But the arrival of COVID-19 has caused this popularity to spike, transforming ODR from a convenient novelty into an absolute necessity for dispute resolution.

But ODR is subject to the limitations of its online platform. Dispute resolution methods may not function online the same way they do in person. With this difference of function …

Police Arbitration, Stephen Rushin

Faculty Publications & Other Works

Before punishing an officer for professional misconduct, police departments often provide the officer with an opportunity to file an appeal. In many police departments, this appeals process culminates in a hearing before an arbitrator. While numerous media reports have suggested that arbitrators regularly overturn or reduce discipline, little legal research has comprehensively examined the outcomes of police disciplinary appeals across the United States.

In order to better understand the use of arbitration in police disciplinary appeals and build on prior research, this Article draws on a dataset of 624 arbitration awards issued between 2006 and 2020 from a diverse range …

International Commercial Courts In The United States And Australia: Possible, Probable, Preferable?, S. I. Strong

Faculty Articles

As worldwide interest in international commercial courts grows, questions arise as to whether individual nations can or should seek to compete in the “litigation market” by developing their own cross-border business courts. This essay compares the prospects of the United States and Australia in this regard, focusing on whether it is possible (Section II), probable (Section III), and preferable (Section IV) for one or both of these two federalized, common law nations to develop an international commercial court as part of their national judicial systems. The inquiry is particularly intriguing given that one country (the United States) has had a …

Arbitration In The Age Of Covid: Examining Arbitration's Move Online, Amy J. Schmitz

Faculty Publications

Arbitration has been moving online over time with the growth of the Internet and Online Dispute Resolution (“ODR”), which includes use of technology to assist online negotiation, mediation, arbitration, and variations thereof. Online Arbitration (“OArb”) is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act (“FAA”). Indeed, I have written about OArb on prior occasions, due to its unique status under the FAA and other arbitration laws. However, OArb was relatively limited until the COVID-19 pandemic sparked the acceleration of …

Arbitration In The Age Of Covid: Examining Arbitration's Move Online, Amy J. Schmitz

Faculty Publications

Arbitration has been moving online over time with the growth of the Internet and Online Dispute Resolution ("ODR"), which includes use of technology to assist online negotiation, mediation, arbitration, and variations thereof Online Arbitration ("OArb ") is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act ("FAA"). Indeed, I have written about OArb on prior occasions, due to its unique status under the FAA and other arbitration laws. However, OArb was relatively limited until the COVID-19 pandemic sparked the acceleration …

In Contracts We Trust (And No One Can Change Their Mind)! There Should Be No Special Treatment For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor

Faculty Articles

The recent article In God We Trust (Unless We Change Our Mind): How State of Mind Relates to Religious Arbitration ("In God We Trust") proposes that those who sign arbitration agreements that consent to a religious legal system as the basis of the rules of arbitration be allowed to back out of such agreements based on their constitutional right to free exercise. This article is a response and is divided into two sections. In the first section, we show that such an exemption would violate the Federal Arbitration Act's (FAA) basic rules preventing the states from heightened regulation of arbitration …

Religious Alternative Dispute Resolution In Israel And Other Nations With State-Sponsored Religious Courts: Crafting A More Efficient And Better Relationship Between Rabbinical Courts And Arbitration Law In Israel, Michael J. Broyde, Ezra Ives

Faculty Articles

This paper proposes the expansion of both private and public options regarding religious arbitration in Israel, broadening both the choice of law and the choice of forum available to Israeli citizens in cases of either commercial law or issues of status (such as divorce, marriage, and conversion). The current law in Israel prohibits citizens from adjudicating their monetary disputes in state religious courts and treats private religious courts as no different from any other arbitration tribunal, precluding these private religious courts from marriage, divorce and conversion matters. We propose that both of these restrictions be lifted, while the role of …

The Uncertain Fate Of Asymmetrical Dispute Resolution Clauses In Arbitration Around The Globe: To Be Or Not To Be, Raluca Papadima

Scholarly Works

This article examines the validity and enforceability of asymmetrical dispute resolution clauses combining arbitration and litigation. Such clauses are currently favored by businesses in their search for a method of dispute resolution that provides a more favorable position for one of the parties to an agreement and ensures better enforcement against the assets of the counterparty.

Time To Panic! The Need For State Laws Mandating Panic Buttons And Anti-Sexual Harassment Policies To Protect Vulnerable Employees In The Hotel Industry, Kristy D'Angelo-Corker

Faculty Scholarship

No abstract provided.

Hiding Sexual Harassment: Myths And Realities, Pat K. Chew

Articles

Hiding Sexual Harassment: Myths and Realities

Nevada Law Journal, Vol. 21, p. 1223, 2021

Sexual harassment and gender disparities in the workplace continue, but we are not paying enough attention. The heralded me-too movement and the publicized downfalls of Harvey Weinstein, Bill Cosby, and other former luminaries might give the impression that the lid is blown off the indignities of harassment in the workplace and that American society’s collective disdain and abhorrence of harassment has quickly put an end to these incivilities. But these headline cases are just the tip of the sexual harassment iceberg; they may even give us …

A Hague Convention On Parallel Proceedings, Paul Herrup, Ronald A. Brand

Articles

The Hague Conference on Private International Law has engaged in a series of projects that, if successful, could provide the framework for critical aspects of trans-national litigation in the Twenty-first Century. Thus far, the work has resulted in the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. Work now has begun to examine the need, desirability and feasibility of additional instruments in the area, with discussions of an instrument that would either require or prohibit the exercise of jurisdiction by national courts, and …

After First Options: Delegation Run Amok, George A. Bermann

Faculty Scholarship

The proper allocation of authority between courts and arbitral tribunals over the enforceability of agreements to arbitrate has long occupied a central place in U.S. arbitration law, domestic and international alike. From U.S. Supreme Court case law over the years, there has emerged a reasonably well-understood distinction between those issues of enforceability that a court will address if asked by a party to do so and those that it will not. Fundamental to the Court’s jurisprudence is a recognition that some enforceability issues – “gateway issues” – so seriously implicate the consent of parties to arbitrate their disputes that a …

Informing Wto Reform: Dispute Settlement Performance, 1995-2020, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste

Faculty Scholarship

This article presents salient facts on the performance of WTO dispute settlement, using an updated dataset on cases adjudicated between 1992 and mid 2020. The dataset provides a comprehensive compilation of information on WTO disputes, including complainants, respondents and third parties; the substantive matters tabled; the WTO provisions invoked; the claims that are accepted or rejected by adjudicating bodies; the time involved to complete the consultation, panel and appeal (Appellate Body) stages; and the identity of panelists and how they were appointed. We highlight elements of the operation of the system that are salient to WTO reform discussions, while drawing …

Designing A State Court Small Claims Odr System: Hitting A Moving Target In New York During A Pandemic, David Allen Larson

Faculty Scholarship

When I began helping the New York State Unified Court System design a pilot online dispute resolution (“ODR”) system back in October 2016, I never imagined more than four years would pass before a system was implemented. One reason our journey was so long is because our target kept moving. After completing a detailed credit card debt collection ODR platform, we had to change direction before implementation and focus instead on small claims cases. Then like the rest of the world, we suddenly had to deal with the COVID-19 pandemic. Although it took longer than anticipated, we achieved our goal …

Getting Real About Procedure: Changing How We Think, Write And Teach About American Civil Procedure, Suzette M. Malveaux

Publications

No abstract provided.

The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand

Articles

The Hague Judgments Convention, completed on July 2, 2019, is built on a list of “jurisdictional filters” in Article 5(1), and grounds for non-recognition in Article 7. If one of the thirteen jurisdictional tests in Article 5(1) is satisfied, the judgment may circulate under the Convention, subject to the grounds for non-recognition found in Article 7. This approach to Convention structure is especially significant for countries considering ratification and implementation. A different structure was suggested in the initial Working Group stage of the Convention’s preparation which would have avoided the complexity of multiple rules of indirect jurisdiction, each of which …

Automating Fairness? Artificial Intelligence In The Chinese Court, Rachel E. Stern, Benjamin L. Liebman, Margaret Roberts, Alice Z. Wang

Faculty Scholarship

How will surging global interest in data analytics and artificial intelligence transform the day-to-day operations of courts, and what are the implications for judicial power? In the last five years, Chinese courts have come to lead the world in their efforts to deploy automated pattern analysis to monitor judges, standardize decision-making, and observe trends in society. This Article chronicles how and why Chinese courts came to embrace artificial intelligence, making public tens of millions of court judgments in the process. Although technology is certainly being used to strengthen social control and boost the legitimacy of the Chinese Communist Party, examining …

The Future Of International Commercial Arbitration, George A. Bermann

Faculty Scholarship

Although international commercial arbitration is not subject to as much criticism as investor-State arbitration, it is nonetheless facing challenges going forward. These challenges are several, and only some can be addressed in this chapter. Some relate to concerns that have been with international arbitration for a long time. These include costs, delay and excessive formality, as well as arbitrator neutrality. Others – arbitration ethics, diversity, and transparency – are not new, but are taking on greater urgency. Still others simply represent new developments more or less extrinsic to international arbitration but with which international arbitration must cope. Among these changes …

Plurilateral Cooperation As An Alternative To Trade Agreements: Innovating One Domain At A Time, Bernard M. Hoekman, Charles F. Sabel

Faculty Scholarship

At the end of 2017 different groups of WTO members decided to launch talks on four subjects, setting aside the WTO consensus working practice. This paper argues that these ‘joint statement initiatives’ (JSIs) should seek to establish open plurilateral agreements (OPAs) even in instances where the outcome can be incorporated into existing schedules of commitments of participating WTO members. Designing agreements as OPAs provides an institutional framework for collaboration among the responsible national authorities, transparency, mutual review and learning, as well as alternatives to default WTO dispute settlement procedures which may not be appropriate for supporting cooperation on the matters …

The Vulnerable Sovereign, Ronald A. Brand

Articles

The connection between sovereignty and law is fundamental for both domestic (internal sovereignty) and the international (external sovereignty) purposes. As the dominant forms of government have evolved over time, so has the way in which we think about sovereignty. Consideration of the historical evolution of the concept of sovereignty offers insight into how we think of sovereignty today. A term that was born to represent the relationship between the governor and the governed has become a term that is used to represent the relationships between and among states in the global legal order. This article traces the history of the …

Third Party Funding Of Investment Arbitration, Maya Steinitz

Faculty Scholarship

This Essay discusses Third-Party Funding in Investment Arbitration. It describes the rise of third-party funding of investment arbitration; the debate over the definition of litigation/arbitration finance; the forms arbitration finance takes; the normative debate in favor and against third-party funding of investment arbitration; the effects of arbitration funding on the arbitral process; developments in national, international, and soft law governing investment arbitration funding; and the likely effects of third-party funding on the international bar.

The Transient And The Permanent In Arbitration, William W. Park

Faculty Scholarship

Several years ago, Jan Paulsson observed that Derek Roebuck might substitute for a time machine, providing a way for us to voyage backward with a guide to put everything in context. Indeed, the great Derek Roebuck, to whom we dedicate this set of essays, gave much of his professional life to making sure that by receiving a glimpse of dispute resolution in earlier times, we might have an opportunity better to understand the reality of present-day arbitration.

Accrual Of Cause Of Action In Negligence: Ipp Financial Advisers Pte V Saimee Bin Jumaat, Gary Kok Yew Chan

Singapore Law Journal (Lexicon)

Damage is the gist of the action in negligence. An action in negligence is said to accrue only when damage arises. The precise timing of the damage is an important factor in an application to strike out a claim in negligence on the ground that it was filed out of time contrary to the Limitation Act. Consequently, the lawsuit may have to be initiated within a specified period from the accrual of the cause of action.

Beyond Plea Bargaining: A Theory Of Criminal Settlement, Richard Lorren Jolly, J.J. Prescott

Articles

Settlement is a term rarely used in criminal law. Instead, people speak almost exclusively of plea bargaining—i.e., enforceable agreements in which a defendant promises to plead guilty in exchange for a prosecutor’s promise to seek leniency in charging or at sentencing. But a traditional plea agreement is just the most visible instance of a much broader class of possible criminal settlement agreements. In terms of their fundamentals, criminal settlements are indistinguishable from their civil counterparts: through either an atomized or comprehensive bargain, parties exchange what they have for what they want, advancing their respective interests in cost minimization, risk mitigation, …

Bibliometric Analysis Of Research Trends On Role Of Dispute Resolution Mechanisms In Family Law Conflicts, Himanshi Parekh, Yogesh Dharangutti

Library Philosophy and Practice (e-journal)

This paper is a bibliometric analysis of research publications in the field of dispute resolution of family matters. The paper analyses the frequency of publications in this arena and identifying the research gaps. The paper utilizes literature published on this subject available at the Scopus database from 2011 to 2020. A total of 59 documents varying from books, chapters, articles, and journals have been extracted and analyzed for the purpose of this study. This data is further analyzed and presented in the forms of tables, maps, graphs, etc using VOSviewer and IMAPBuilder software. The study shows that even though there …

Don’T Bring An Army To An Arbitration (England, 1411), David J. Seipp

Faculty Scholarship

The name of our friend Derek Roebuck will always be linked to the long history of arbitration and mediation which he has chronicled so thoroughly in a dozen volumes by my count and many articles and chapters. On a spectrum of dispute resolution methods from formal courtroom litigation to savage brute force, arbitration stands at an interesting intermediate point. In tribute to Derek’s memory, I offer this glimpse of a curious episode at the intersection of due process of law, armed violence and principled arbitration. It reminds us that these three alternatives were not always as widely differentiated as we …