Law Commons^™

What’S In The Contract?: Rockefeller, The Hague Service Convention, And Serving Process Abroad, Thomas G. Vanderbeek

Vanderbilt Law Review

Today’s global economy relies on transnational commerce. The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”), implemented in 1965, encouraged transnational commerce by establishing a streamlined mechanism for serving foreign parties with process. More reliable international service methods helped ensure parties that they could resolve disputes with foreign parties through the courts. The Hague Service Convention thus created a bridge between civil and common law procedures on service while reducing some of the risks of engaging in business with foreign parties.

At the same time, the Hague Service Convention frequently …

Play On? An Evaluation Of Fifa's Legal Regime And Its Foundation In Alternative Dispute Resolution, Blaine Sanders, J.D. Candidate, 2023

Vanderbilt Journal of Transnational Law

Few associate the Federation Internationale de Football Association, or FIFA, with its legal regime. Rather, and understandably so, sports fans and commentators tend to focus on World Cups, corruption, or even the FIFA video game. Yet, FIFA's role in the sport of soccer extends well beyond what receives the most commercial attention. FIFA shoulders the burden of regulating soccer's member associations, national teams, clubs, players, and countless other personnel through its FIFA Statutes. This is a considerable undertaking, which FIFA achieves through its comprehensive system of alternative dispute resolution.

Soccer is now a global business, largely due to the economic …

Police Arbitration, Stephen Rushin

Vanderbilt Law Review

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 …

The Arbitration-Litigation Paradox, Pamela K. Bookman

Vanderbilt Law Review

The Supreme Court's interpretation of the Federal Arbitration Act is universally touted as favoring arbitration. Its arbitration cases and decisions in other areas are also viewed as supporting the Court's more general hostility to litigation. These pro-arbitration and anti-litigation policies can be mutually reinforcing. Moreover, they appear to be mutually consistent, in part because the Court describes the essential features of arbitration as being "informal," "speedy," "efficient"-in short, the categorical opposite of litigation.

This Article contends that the Court's approach is not as "pro- arbitration" as it appears. On the contrary, the Court's pro-arbitration and anti- litigation values sometimes conflict. …

Cybersecurity And The Protection Of Digital Assets: Assessing The Role Of International Investment Law And Arbitration, Julien Chaisse, Cristen Bauer

Vanderbilt Journal of Entertainment & Technology Law

The digital era provides many opportunities, yet it also presents several unique challenges with regard to cybersecurity and the protection of digital assets. Cybercrime has changed the international legal landscape as nations, businesses, and legislators grapple with how to deal with this rapidly evolving, multifaceted problem. As there is no international mechanism for protection of foreign investors in this regard, some scholars are advocating for the use of Bilateral Investment Treaties (BITs) as part of a 'olycentric" approach to cyber peace. With an uptick in digital development and more development on the horizon, it will be important to establish what …

Bespoke Discovery, Jessica Erickson

Vanderbilt Law Review

The U.S. legal system gives contracting parties significant freedom to customize the procedures that will govern their future disputes.' With forum selection clauses, parties can decide where they will litigate future disputes.2 With fee-shifting provisions, they can choose who will pay for these suits. 3 And with arbitration clauses, they can make upfront decisions to opt out of the traditional legal system altogether.4 Parties can also waive their right to appeal,5 their right to a jury trial,6 and their right to file a class action.7 Bespoke procedure, in other words, is commonplace in the United States. Far less common, however, …

Arbitration And Article Iii, Peter B. Rutledge

Vanderbilt Law Review

Arbitration implicates serious constitutional concerns that have not received adequate attention in case law or commentary. Recent litigation in the D.C. Circuit over the constitutionality of the North American Free Trade Agreement ("NAFTA") represents the most recent, high-profile example. A centerpiece of NAFTA and its implementing legislation is an arbitration mechanism that divests Article III courts of virtually all jurisdiction over countervailing duty and anti-dumping claims and invests that authority in panels of Associate Professor of Law, Columbus School of Law, Catholic University of America. Arbitration implicates serious constitutional concerns that have not received adequate attention in case law or …

Equitable Estoppel And The Compulsion Of Arbitration, Alexandra A. Hui

Vanderbilt Law Review

Freedom of contract is a longstanding principle deeply rooted in American jurisprudence, protected by the Contract Clause and by the Due Process Clauses of the Fifth and Fourteenth Amendments.' Because of the legal system's high regard for freedom of contract, parties are free to negotiate virtually all issues, thus creating rights and limiting duties and obligations to one another.

In exercising this freedom to contract, parties often negotiate an arbitration clause. These clauses, also referred to as "predispute arbitration agreements," are contractual provisions agreed to in advance of any dispute that require a party to submit any and all future …

Say What You Mean: Improved Drafting Resources As A Means For Increasing The Consistency Of Interpretation Of Bilateral Investment Treaties, Kelley Connolly

Vanderbilt Journal of Transnational Law

Following the demise of international recognition of the Hull Rule as the standard governing foreign direct investment, countries throughout the world have turned to bilateral investment treaties (BITs) to govern direct investment relationships. BITs allow countries to bind themselves credibly to commitments by granting substantive rights to investors and offering remedies for violations of those rights, thereby incentivizing new investments and facilitating economic ventures. The recent dramatic increase in disputes arising under BITs has shaken the legitimacy of these agreements. Arbitration panels interpret these documents inconsistently, which disparately impacts developing nations negatively. The inconsistent interpretations rob BITs of clarity and …

Arbitration Costs And Contingent Fee Contracts, Christopher R. Drahozal

Vanderbilt Law Review

A common criticism of arbitration is that its upfront costs (arbitrators' fees and administrative costs) may preclude consumers and employees from asserting their claims. Some commentators have argued further that arbitration costs undercut the benefits to consumers and employees of contingent fee contracts, which permit the claimants to defer payment of attorneys' fees and litigation expenses until they prevail in the case (and if they do not prevail, avoid such costs altogether). This paper argues that this criticism has it exactly backwards. Rather than arbitration costs interfering with the workings of contingent fee contracts, the contingent fee mechanism provides a …

Islamic Arbitration: A New Path For Interpreting Islamic Legal Contracts, Charles P. Trumbull

Vanderbilt Law Review

Muslims living in a secular, liberal democratic state face a fundamental dilemma: reconciling the obligation to live according to Shari'a with their civic duty to follow secular laws. Muslims attempt to resolve this dilemma in a number of ways. Some enter public office and try to influence the generally applicable laws of their country. Others advocate greater legal pluralism, thus allowing Muslims to settle certain disputes under Islamic law. In Canada, for example, the Islamic Institute for Civil Justice ("IICJ") announced plans to create Shari'a tribunals and claimed that it would begin arbitrating family and commercial disputes according to Islamic …

Renegotiation And Adaptation Of International Investment Contracts, Klaus P. Berger

Vanderbilt Journal of Transnational Law

In modern-day international investment practice, especially in connection with the exploitation of natural resources, Production Sharing Agreements have come to take over the role of the classic concession agreement. Like their predecessors, these contracts are particularly vulnerable to disturbances in the commercial balance agreed to, or assumed by, the parties at the conclusion of the contract. This vulnerability has three primary causes.

First, these are classic examples of long term contracts. In the petroleum industry, the commitment of significant capital for exploration, particularly in development, and the assumption of considerable risk, particularly in exploration, require contracts covering up to and …

The Exercise Of Contract Freedom In The Making Of Arbitration Agreements, Thomas E. Carbonneau

Vanderbilt Journal of Transnational Law

The privatization and contractualization of arbitration, while they empower parties and unburden public institutions, should not eliminate completely the basis for the public regulation of the process. The string of "one-off' arbitrations, gathered together, has consequences upon the public interest in the orderly administration of adjudicative relations in both domestic and international law. The use of arbitration does have a bearing upon the substantive content of legal rights. Judicial vigilance should not only ward off the flagrant abuses of process and procedure in arbitration, but it should also establish an "interests of justice" limitation upon the operation of the process …

Major League Baseball's Answer To Salary Disputes And The Strike:, Brien M. Wassner

Vanderbilt Journal of Entertainment & Technology Law

Initially, this paper will briefly consider arbitration in general and then discuss the evolution of FOA and its implementation into MLB salary disputes. This paper will thereafter analyze the praises and criticisms of FOA, and establish that FOA is a superior mechanism for resolving salary disputes in professional sports because the FOA system is designed to facilitate negotiation and settlement rather than to resolve the dispute subsequent to adversarial hearings.

The Culture Of Arbitration, Tom Ginsburg

Vanderbilt Journal of Transnational Law

The relationship between "legal culture" and the practice of international arbitration has received increasing attention in recent years. Many see arbitration as a meeting point for different legal cultures, a place of convergence and interchange wherein practitioners from different backgrounds create new practices. Some have suggested that this process has led to an emergent "international arbitration culture" fusing together elements of the common law and civil law traditions. Others see arbitration as a locus of conflict among traditions or as competition among various players.

This comment contests the view that the current state of convergence in arbitration is properly considered …

Renegotiation And Adaptation Clauses In Investment Contracts, Revisited, John Y. Gotanda

Vanderbilt Journal of Transnational Law

Professor Dr. Klaus Berger, in Renegotiation and Adaptation of International Investment Contracts: The Role of Contract Drafters and Arbitrators, proposes that international investment contracts include a clause allowing the parties to renegotiate the terms of their contract if certain events take place.' If they are unable to reach an agreement, Professor Berger advocates that the parties agree to permit an arbitral tribunal to modify the terms of the contract to restore the economic equilibrium assumed by the parties when they concluded the agreement. Although commentators have often championed these clauses, private parties involved in international transactions have included them infrequently. …

The Unclear "Clear And Unmistakable" Standard: Why Arbitrators, Not Courts, Should Determine Whether A Securities Investor's Claim Is Arbitrable, Guy Nelson

Vanderbilt Law Review

When an individual investor opens an account with a securities broker, the customer often must sign a standard-form contract as a precondition of conducting business with the broker. This non- negotiable contract, referred to as a Customer Agreement, generally contains an arbitration clause under which the parties agree to submit any future disputes to arbitration conducted by one of the securities industry's self-regulatory organizations ("SROs"). Proceedings initiated under the broad and inclusive arbitration clause are subject to the arbitration guidelines established by the SROs, a group which includes all the major stock exchanges. Virtually all brokers are members of an …

Setting Arbitrators' Fees: An International Survey, John Y. Gotanda

Vanderbilt Journal of Transnational Law

This Article examines the compensation policies of international arbitrators. Specifically, the Article details the results of a survey of individuals who practice in the area of international arbitration.

Initially, the Article describes the different methods of calculating the fees of the arbitral tribunal, discussing the relative advantages and disadvantages of each method. The study concludes that most arbitrators calculate their fees using a time-based method, except when the arbitral institution requires that their fees be determined under the ad valorem method.

Next, the Article examines arbitrators' policies regarding cancellation and commitment fees. Survey results highlighted confusion about whether arbitrators were …

Equitable Estoppel And The Outer Boundaries Of Federal Arbitration Law: The Alabama Supreme Court's Retrenchment Of An Expansive Federal Policy Favoring Arbitration, David F. Sawrie

Vanderbilt Law Review

A consumer purchases a manufactured home from a commercial vendor.' As part of the commercial transaction, the consumer and vendor execute a sales agreement containing the following arbitration clause: "All disputes, claims, or controversies arising from or relating to this Contract or the relationships which result from this Contract... shall be resolved by binding arbitration .... ,, The manufacturer of the home is not a party to the sales contract. Rather, the manufacturer issues a separate warranty agreement in connection with the consumer's purchase.

When the consumer discovers defects in the home, the consumer sues both the commercial vendor and …

Introduction: Current Issues In Arbitration, Shannon E. Pinkston

Vanderbilt Law Review

"[An incompetent attorney can delay a case for years, while a competent attorney can delay it for even longer."'

This oft-repeated joke illustrates the public perception of the delays and expense that accompany courtroom litigation. Indeed, growing frustration with crowded courts and exorbitant legal costs fuels the widespread Alternative Dispute Resolution ("ADR") movement. Notwithstanding the dramatic increase in its use, ADR, defined as "procedures for settling disputes by means other than litigation," is not a novel idea. In fact, ADR was present in America as early as the seventeenth century. In certain parts of colonial America, voluntary arbitration was a …

Contracting For An Expanded Scope Of Judicial Review In Arbitration Agreements, Tom Cullinan

Vanderbilt Law Review

Arbitration is generally defined as a process in which parties voluntarily agree to submit a dispute to an impartial third person called an arbitrator,' who is often selected by the parties and is empowered to make a decision based on the evidence and the parties' arguments. Because of its contractual nature, arbitration claims a central role in settling today's commercial disputes. By structuring the agreement to fit their needs, parties can tailor the arbitration agreement to provide significant advantages over other forms of dispute resolution. For example, arbitration is generally faster, cheaper, and more private than litigation. The parties can …

Intervention And Joinder As Of Right In International Arbitration, S. I. Strong

Vanderbilt Journal of Transnational Law

For the purpose of this Article, an existing party is said to have a claim to join a third party into an arbitration as of right when (1) in the third party's absence, complete relief cannot be accorded among those already parties to the arbitration or (2) the third party asserts an interest relating to the subject of the arbitration and is so situated that the disposition of the arbitration in the third party's absence may (a) as a practical matter impair or impede the third party's ability to protect that interest or (b) leave any of the persons already …

Economic Globalization: The Challenge For Arbitrators, Ranee K.L. Panjabi

Vanderbilt Journal of Transnational Law

CHOICE OF LAW IN INTERNATIONAL COMMERCIAL ARBITRATION

By Okezie Chukwumerije

Westport, Connecticut: Quorum Books, 1994. Pp. 219.

Arbitration at the municipal level is becoming more frequently used because it is regarded as a more expeditious process for resolving disputes. In the realm of labor relations, for instance, arbitration is often the dispute resolution method of choice and is incorporated in numerous collective agreements. In an arbitration the two parties usually select an arbitrator and jointly pay the costs of the process. In the collective agreement or contract, the parties stipulate the terms of the procedure that generally bind the arbitrator, …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

SYSTEMS OF CONTROL IN INTERNATIONAL ADJUDICATION AND ARBITRATION

By W. Michael Reisman

Durham and London: Duke University Press, 1992. Pp. 174.

LEGISLATIVE RESPONSES TO TOBACCO USE

By World Health Organization Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1991.Pp. 226.

IMPORT AND CUSTOMS LAW HANDBOOK

By Michael J. Horton

New York, New York: Quorom Books, 1992. Pp. 308. $55.00.

THE LAW AND ECONOMIC DEVELOPMENT IN THE THIRD WORLD

Edited by P. Ebow Bondzi-Simpson

New York, New York: Praeger Publishers 1992. Pp. 200. $49.95.

International Transactions And Claims Involving Government Parties: Case Law Of The Iran-United States Claims Tribunal, Richard M. Mosk Reviewer, Nils Mangard Reviewer, Koorosh H. Ameli Reviewer

Vanderbilt Journal of Transnational Law

International Transactions and Claims Involving Government Parties: Case Law of the Iran-United States Claims Tribunal

By John A. Westberg

International Law Institute

Washington, D.C.: 1991. Pp. 412. $125.

=========================

Richard M. Mosk - reviewer

Nils Mangard - reviewer

Koorosh H. Ameli - reviewer

Deceptive Negotiating And High-Toned Morality, Walter W. Steele, Jr.

Vanderbilt Law Review

Rising concern about the adequacy of the adversary system to deal with disputes quickly, fairly, and economically has led to increased interest in a broad range of alternate dispute resolution mechanisms such as arbitration and the use of mini-trials. Presently, however, negotiation between disputants or negotiation between counsel for disputants is the best understood and most often utilized alternative to litigation. In fact, negotiating prior to litigating is so pervasive that it might be thought of as an inherent part of the litigation process. From a lawyer's perspective, an advantage of negotiation over other forms of dispute resolution is that …

Recent Decisions, Lucy C. Gratz, Laurel C. Williams

Vanderbilt Journal of Transnational Law

Arbitration--Transnational Antitrust Claims are Nonarbitrable under the Federal Arbitration Act and Article II (1) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards--Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 723 F.2d 155 (1st Cir.1983), cert. granted, 105 S. Ct. 291 (1984).

Comment

The instant decision marks the first time a court has considered whether to apply the United States domestic policy of preserving antitrust issues for judicial determination to an international contract containing a mandatory arbitration clause. The First Circuit's decision to apply domestic policy undermines the preeminent goal of the Convention, which is to encourage arbitration …

Recent Decisions, Lucy C. Gratz, Laurel C. Williams

Vanderbilt Journal of Transnational Law

Arbitration Transnational Antitrust Claims are Nonarbitrable under the Federal Arbitration Act and Article II (1) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards--Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 723 F.2d 155 (1st Cir.1983), cert. granted, 105 S. Ct. 291 (1984).

Lucy C. Gratz

===================================

International Banking--The International Banking Act of 1978 Limits the States' Ability to Regulate Foreign Bank Entry, "Conference of State Bank Supervisors v. Conover," 715 F.2d 604 (D.C. Cir. 1983), cert. denied, 104 S. Ct. 1708 (1984).

Laurel Comstock Williams

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

THE UNITED STATES MAY EXERCISE JURISDICTION OVER PERSONSON A "STATELESS" VESSEL WITHOUT SHOWING A NEXUS BETWEEN THE VESSEL AND THE UNITED STATES--United States v. Pinto-Mejia, 720 F.2d 248 (2d Cir. 1983).

============================

ALIEN RETAINS RIGHT TO DEPORTATION PROCEEDING AFTER RETURNING FROM AUTHORIZED DEPARTURE NOTWITHSTANDING THAT IMMIGRATION AND NATURALIZATION SERVICE PERMISSION TO DEPART WAS STYLED AS AN "ADVANCE PAROLE"--Joshi v. District Director, Immigration and Naturalization Serv., 720 F.2d 799 (1983).

==========================

NO VIOLATION OF INTERNATIONAL LAW WHEN EQUIPMENT LOCATED IN UNITED STATES RECORDS TRANSNATIONAL TELECOMMUNICATIONS--United States v. Romano, 706 F.2d 370 (2d Cir. 1983).

==========================

UNITED STATES MANUFACTURERS HAVE A CAUSE …

International Legal Research: An Infinite Paper Chase, Adolf Sprudzs

Vanderbilt Journal of Transnational Law

International legal research operates in the contemporary reality of an increasingly interdependent, complex world in which constant change is the order of the day. Not only are the numbers of international actors on the world stage changing (from 51 original members of the United Nations in 1945 to 157 United Nations member-states in 1982), but also changing are the concepts and methods of international law-making, as well as perceptions of the nature and sources of international law. The tremendous growth in the number of new states and international organizations has been accompanied by a corresponding expansion in world trade, international …