Law Commons^™

Lord Mustill And The Channel Tunnel Case, William W. Park

Faculty Scholarship

Over two decades ago, in the now legendary Channel Tunnel Case, the British House of Lords (as it then was) was asked to provide judicial support for the efficient completion of a monumental construction project. The decision in that matter, penned by the late Lord Mustill, illustrates the delicate interplay between the dynamics of otherwise applicable law and the bespoke arbitration framework chosen by sophisticated parties to govern their dispute.

Gaps And Changed Circumstances In Energy Contracts: The Devil In The Detail, William W. Park

Faculty Scholarship

Energy contracts have long been vexed by questions about the role of gap filling by arbitrators and judges, along with the effect of changed circumstance on the parties’ obligations. Each challenge continues to resist facile analysis as differing legal standards interact with subtleties of contract language and factual matrixes. In the face of these challenges, arbitrators must seek a delicate equilibrium between legitimate respect for bargains and an equally legitimate recognition of expectations that genuine gaps be filled and dramatically changed circumstances receive appropriate consideration. In aiming for counterpoise, common sense normally pays greater dividends than ideology or dogmatism.

Harmonizing Third-Party Litigation Funding Regulation, Victoria Sahani

Faculty Scholarship

Third-party litigation funding is no longer a new phenomenon, but rather is a mainstay in global commerce and dispute resolution. Yet many observers still consider the third-party litigation funding industry as a “wild west” due to a lack of regulation in many countries. Some of the countries that have regulations suffer from a lack of uniformity and an array of conflicting laws at the sub-national level (i.e., the laws of states, provinces, territories, etc.). For example, the United States has a confusing patchwork of state laws on third-party litigation funding. This Article proposes harmonizing the regulatory framework for third-party litigation …

Recent Trends In Discovery In Arbitration And In The Federal Rules Of Civil Procedure, Paul Radvany

Faculty Scholarship

No abstract provided.

Arbitrator Bias, William W. Park

Faculty Scholarship

Seeking to bring arbitration into disrepute, an evil gremlin might contemplate two starkly different routes. One route would tolerate appointment of pernicious arbitrators, biased and unable to judge independently. An alternate route to shipwreck, also reducing confidence in the integrity of the arbitral process, would establish unrealistic ethical standards that render the arbitrator’s position precarious and susceptible to destabilisation by litigants engaged in dilatory tactics or seeking to annul unfavourable awards. To reduce the risk of having cases decided by either pernicious or precarious arbitrators, those who establish and apply ethical guidelines walk a tightrope between the rival poles of …

The Cohasset Marshlands Dispute: International Arbitration In Colonial New England, William W. Park

Faculty Scholarship

One of the earliest international arbitrations in the Americas arose from rival claims to hayfields contested between two groups of religious dissidents. The dispute resolution process which unfolded in 1640 between the Massachusetts and Plymouth colonies takes special significance as an epochal step toward the robust cross-border cooperation that ultimately united thirteen disparate colonies into a single nation.

Using The Theories Of Exit, Voice, Loyalty, And Procedural Justice To Reconceptualize Brazil's Rejection Of Bilateral Investment Treaties, Nancy A. Welsh, Andrea Kupfer Schneider, Kathryn Rimpfel

Faculty Scholarship

In the past decade, investor-state arbitration has made tremendous gains in both credibility and use. There is now widespread accession to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID Convention” or “Washington Convention”). States have executed more than 2,000 bilateral investment treaties (BITs) defining the terms and conditions under which one (“investor”) state’s nationals and companies will invest in the other (“host”) state. Such terms include provisions allowing foreign investors to initiate arbitration proceedings against the host state, and at this point, more than 500 disputes have been submitted to investor-state arbitration. …

Mediator Ethical Breaches: Implications For Public Policy, Sharon Press

Faculty Scholarship

Court-connected mediation, which includes both court mandated and court encouraged mediation, has become a well-established part of the judicial system in the United States. There are many public policy implications of this phenomenon. These include the underlying goals of the development of court-connection mediation and the responsibility to the public once a court-connected mediation program is established to ensure that the public has access to quality providers of mediation services. Once a court-connected mediation program has established qualifications and ethical standards for mediators, there is a public policy obligation for there also to be a mechanism to educate, reprimand or …

The Thoughtful Integration Of Mediation Into Bilateral Investment Treaty Arbitration, Nancy A. Welsh, Andrea Kupfer Schneider

Faculty Scholarship

While the current system of investment treaty arbitration has definitely improved upon the “gunboat diplomacy” used at times to address disputes between states and foreign investors, there are signs that reform is needed: states and investors increasingly express concerns regarding the costs associated with the arbitration process, some states refuse to comply with arbitral awards, other states hesitate to sign new bilateral investment treaties, and citizens have begun to engage in popular unrest at the prospect of investment treaty arbitration. As a result, both investors and states are advocating for the use of mediation to supplement investor-state arbitration. This Article …

The Protection Of Foreign Direct Investments In Developing And Emerging Markets Through The Instrumentality Of Arbitration: Fair Game?, Florence Shu-Acquaye

Faculty Scholarship

Investment treaties have tripled in the twenty-first century with over 170 countries signing onto bilateral investment treaties (BITs). Most BITs are made between a developed and a developing country, whereby a host country promises to protect home country's foreign direct investment (FDI) in exchange for the prospect of increased capital in the future. Hence, BITs tend to reduce the expected risks to FDI in that they stabilize a host country's existing investment environment, as well as provide a substitute for weak domestic laws and institutions that are often ill-equipped to protect FDI.

Convention Violations And Investment Claims, William W. Park

Faculty Scholarship

In theory, treaty commitments remain a foundation of international law, often expressed in the adage pacta sunt servanda: ‘agreements are to be kept’.1 In practice, however, some treaty violations remain without realistic sanctions. Here as elsewhere, the divergence between theory and practice remains greater in practice than in theory.

The Restatement Of The U.S. Law Of International Commercial Arbitration: An Interim Report, George A. Bermann

Faculty Scholarship

Despite its title, the American Law Institute's Restatement (Third) of the U.S. Law of International Arbitration is the ALI's first Restatement ever on the subject of international commercial arbitration. The ALI commissioned this Restatement not merely because the subject has become so important in international commerce, but because the American law on the subject is deeply unsettled. After all, the purpose of Restatements is to bring clarity and coherence and, where necessary, improvement to the law. Historically, Restatements have concentrated on state rather than federal law subjects precisely because of the discrepancies among the laws of the several states on …

Mandatory Predispute Consumer Arbitration, Structural Bias, And Incentivizing Procedural Safeguards, Nancy A. Welsh

Faculty Scholarship

Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Mandatory predispute arbitration has generated the most controversy because it appears beset with structural bias. The recent cases of AT&T Mobility LLC v. Concepcion and Compucredit Corp. v. Greenwood have raised additional concerns as the Supreme Court has announced that corporations can force consumers to arbitrate their private and statutory claims and give up their rights to pursue class relief. This Article begins by arguing that the Supreme Court’s enthusiastic embrace of mandatory predispute arbitration should be understood primarily …

Becoming "Investor-State Mediation", Nancy A. Welsh, Andrea Kupfer Schneider

Faculty Scholarship

While the current system of investment treaty arbitration has definitely improved upon the “gunboat diplomacy” used at times to address disputes between states and foreign investors, there are signs that reform is needed. Increasingly, states and investors express concerns regarding the costs associated with the arbitration process; some states are refusing to comply with arbitral awards; other states now hesitate to sign new bilateral investment treaties; and citizens have begun to engage in popular unrest at the prospect of investment treaty arbitration. As a result, both investors and states are advocating for the use of mediation to supplement investor-state arbitration. …

Private Regulation Of Consumer Arbitration, Christopher R. Drahozal, Samantha Zyontz

Faculty Scholarship

Arbitration providers, such as the American Arbitration Association ("AAA') and JAMS, have promulgated due process protocols to regulate the fairness of consumer and employment arbitration agreements. A common criticism of these due process protocols, however, has been that they lack an enforcement mechanism. While arbitration providers state that they enforce the protocols by refusing to administer cases in which the arbitration agreement materially fails to comply with the relevant protocol, the private nature of arbitral dispute resolution makes it difficult to verify whether providers in fact refuse to administer such cases.

This Article reports the results of the first empirical …

The Politics Of Class Action Arbitration: Jurisdictional Legitimacy And Vindication Of Contract Rights, William W. Park

Faculty Scholarship

Exactly one year apart, the U.S. Supreme Court decided two cases on “class arbitration” proceedings, one about international shipping and the other on consumer purchases of mobile telephones. Each decision inflicted damage on a claimant’s right to invoke collective action in arbitrations. Read together, the opinions serve as a prism through which to refract key elements in an increasingly politicized debate on the legal framework for arbitration, particularly within the United States.

Navigating Eu Law And The Law Of International Arbitration, George A. Bermann

Faculty Scholarship

The European Union and international arbitration are two robust legal regimes that have managed to develop largely in accordance with their own respective “first principles,” and they have accordingly thrived. This article initially explains why that has been the case.

But the era of parallelism between the regimes has ended, and rather suddenly. This article identifies the two principal fronts on which tensions between EU law and international arbitration law have emerged. Interestingly, both commercial and investment arbitration are implicated.

A first front entails a conflict between the European Court of Justice's (ECJ's) expansive notions of EU public policy and …

Rectitude In International Arbitration, William W. Park

Faculty Scholarship

Few criteria for evaluating arbitrator independence and impartiality will stay foolproof for long, given how ingenious fools often prove themselves to be. No less than in other areas of the law, elaboration of ethical standards for arbitrators implicates a tension between the transient and the permanent. Conflict-of-interest principles remain most useful if implemented with sensitivity to new trouble spots. Traditional ethical models serve as starting points for evaluating the fitness of those to whom business managers and nations entrust their treasure and their welfare. The constant evolution in expectations by users of the arbitral system call for regular adjustment in …

Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie?, Nancy A. Welsh

Faculty Scholarship

Today, there can be little doubt that “alternative” dispute resolution is anything but alternative. Nonetheless, many judges, lawyers (and law students) do not truly understand the dispute resolution processes that are available and how they should be used. In the shadow of the current economic crisis, this lack of knowledge is likely to have negative consequences, particularly in those areas of practice such as bankruptcy and foreclosure in which clients, lawyers, regulators, and courts work under pressure, often with inadequate time and financial resources to permit careful analysis of procedural options. Potential negative effects can include: (1) impairment of a …

Creditor Claims In Arbitration And In Court, Samantha Zyontz, Christopher R. Drahozal

Faculty Scholarship

This article is based on the Interim Report, Creditor Claims in Arbitration and in Court, issued in November 2009 by the Searle Civil Justice Institute's Consumer Arbitration Task Force. It seeks to compare the outcomes of debt collection arbitrations to the outcomes of debt collection cases in court to help in evaluating arbitration as a means of resolving consumer disputes. The arbitration cases examined are debt collection cases administered by the American Arbitration Association (AAA) as part of its consumer arbitration docket, supplemented by cases brought by a single debt buyer as part of a consumer debt collection program administered …

A Cautionary Tale On Arbitral Authority: Judges, Arbitrators And The Stolt-Nielsen Decision, William W. Park

Faculty Scholarship

Few matters prove as slippery as the allocation of tasks between judges and arbitrators in commercial disputes. A choice to arbitrate implicates waiver of access to otherwise competent courts in favor of adjudication which is both private and binding. Respect for this bargain means that judges should not normally disturb an arbitrator’s substantive conclusions.

Arbitration In Autumn, William W. Park

Faculty Scholarship

Often invoked as a metaphor for decline and decay, autumn also carries a sense of robust maturity bringing fruitful harvest and new beginnings. The season’s double symbolism evokes rival visions of arbitration today. Some observers see a golden age of cheap and cheerful proceedings as replaced by a costly complexity that fails arbitration’s promise of coherent and efficient dispute resolution. On closer scrutiny, however, arbitration reveals itself as having arrived at its autumn not in the sense of decay, but rather with vital maturity. Productive exchanges among the various stakeholders in the process serve to refine the counterpoise among accuracy, …

The Four Musketeers Of Arbitral Duty (Les Devoirs De L’Arbitre: Ni Un Pour Tous, Ni Tous Pour Un), William W. Park

Faculty Scholarship

Fans of the Alexandre Dumas novel Three Musketeers will remember that the adventure includes a fourth young man, d'Artagnan, who hopes to become one of the King’s guards, along with his friends Athos, Porthos, and Aramis, living by the motto “All for one, one for all”. Likewise, an arbitrator’s generally includefour key obligation: accuracy, fairness, and efficiency, as well as vigilance in promoting an enforceable award. Prevailing litigants normally hope that the arbitral process will lead to something more than a piece of paper. To this end, they expect arbitrators to avoid giving reasons for annulment or non-recognition to any …

Les Devoirs De L'Arbitre: Ni Un Pour Tous, Ni Tous Pour Un, William W. Park

Faculty Scholarship

Fans of the Alexandre Dumas novel Three Musketeers will remember that the adventure includes a fourth young man, d'Artagnan, who hopes to become one of the King’s guards, along with his friends Athos, Porthos, and Aramis, living by the motto “All for one, one for all”. Likewise, an arbitrator’s generally include four key obligation: accuracy, fairness, and efficiency, as well as vigilance in promoting an enforceable award. Prevailing litigants normally hope that the arbitral process will lead to something more than a piece of paper. To this end, they expect arbitrators to avoid giving reasons for annulment or non-recognition to …

Harmonizing Climate Change Policy And International Investment Law: Threats, Challenges And Opportunities, Daniel M. Firger, Michael Gerrard

Faculty Scholarship

This chapter responds to a chorus of commentary about the potential for conflict between the international investment law regime and an array of national and international actions being undertaken to mitigate and adapt to global climate change. Contrary to conventional wisdom, while some climate-friendly regulations may indeed be facially incompatible with the obligations imposed on states by typical international investment agreements (IIAs), many climate policies – especially those related to clean energy finance and technology transfer – involve principles common to foreign investment law and are largely compatible with that regime. Moreover, pending the unlikely negotiation of a single global …

Marriage Pluralism In The United States: On Civil And Religious Jurisdiction And The Demands Of Equal Citizenship, Linda C. Mcclain

Faculty Scholarship

“Legal pluralism” is hot, particularly in family law. As family law and practice in the United States have become global due to the globalization of the family, some argue it is time for U.S. family law to embrace more legal pluralism so that civil government would cede jurisdictional authority over marriage and divorce law to religious communities. They point to forms of pluralism already present in U.S. family law, such as covenant marriage (available in three states) and New York’s get statutes. They suggest the U.S. should learn from how many other nations allocate jurisdiction over marriage and divorce law …

A New Board Policy On Deferral To Arbitration: Acknowledging And Delimiting Union Waiver Of Employee Statutory Rights, Michael C. Harper

Faculty Scholarship

This article considers the extent to which the National Labor Relations Board should defer in its protection of statutory rights to the private arbitration process under collective bargaining. The article explains and criticizes the theory of implied union waiver advanced by the District of Columbia Circuit Court of Appeals under the leadership of Judge Harry Edwards. It posits a reformulation of Board deferral doctrine for waivable substantive rights. The article also consider the relevance of the Supreme Court’s 2009 decision in 14 Penn Plaza, LLC v. Pyett to Board deferral to arbitration in cases involving § 7 rights that are …

An Empirical Study Of Aaa Consumer Arbitrations, Samantha Zyontz, Christopher R. Drahozal

Faculty Scholarship

This article extends our knowledge of consumer arbitration by presenting results from the first detailed empirical study of consumer arbitration as administered by the AAA. Primarily using a sample of 301 AAA consumer arbitrations that resulted in an award between April and December 2007, it considers such issues as the costs incurred by consumers in arbitration, the speed of the arbitral process, and the outcomes of the cases-the very topics of most interest in the policy debate.

Arbitrators And Accuracy, William W. Park

Faculty Scholarship

An arbitrator’s primary duty remains the delivery of an accurate award, resting on a reasonably ascertainable picture of reality. Litigants wanting only quick or cheap solutions can roll dice, and have no need of lawyers. Evidentiary tools in arbitration should balance sensitivity toward cost and delay against the parties’ interest in due process and correct decisions. If arbitration loses its moorings as a truth-seeking process, nostalgia for a golden age of simplicity will yield to calls for reinvention of an adjudicatory process aimed at discovering the facts, finding the law, and correctly construing contract language.

Non-Signatories And The New York Convention, William W. Park

Faculty Scholarship

In the context of arbitrations subject to the New York Convention, the term ,non-signatory' might evoke several lines of inquiry. Must commitments to arbitrate be signed? What legal framework guides decision-making about who agreed to arbitrate? How should courts monitor an arbitrator's assertion of jurisdiction over someone who never signed an arbitration agreement?

The second of these matters - rules about who agreed to arbitrate - will retain our attention in this paper. While few commentators deny that arbitration rests on consent,¹ less unanimity exists about what exactly constitutes such consent when one side contests that it ever waived …