Law Commons^™

Stayin’ Alive?: Bg Group, Plc V. Republic Of Argentina And The Vitality Of Host-Country Litigation Requirements In Investment Treaty Arbitration, Stephen R. Halpin Iii

Washington and Lee Law Review

No abstract provided.

An Investigation Of The Role Of Wipo Arbitration Rules In Intellectual Property Dispute Resolutions, Hamid Nasseri

Hamid Nasseri

Abstract

WIPO arbitration rules which became imperative in 2002 is one of the most comprehensive and professional rules for the settlement of intellectual property disputes. These arbitration rules are the best in settling intellectual property disputes when we take into consideration the significant issues relevant to the procedure of settling intellectual property disputes such as: the possibility of direct access of individuals to arbitration, the speed of arbitration, professionalism, organizational claims, predictions of the likelihood of appeal to alternative approaches, confidentiality of arbitration as well as the arrangement of protection schemes.

Arbitration Case Law Update 2014, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This chapter identifies decisions by the U.S. Supreme Court, the Financial Industry Regulatory Authority (FINRA) and selected lower federal and state courts in the past year that interpret and apply the Federal Arbitration Act (FAA) and could have an impact on securities arbitration practice.

Between Law And Religion: Procedural Challenges To Religious Arbitration Awards, Michael Helfand

Michael A Helfand

This Essay presented at the Sharia and Halakha in America Conference explores the unique status of religious law as a hybrid concept that simultaneously retains the characteristics of both law and religion. To do so, the Article considers as a case study how courts should evaluate procedural challenges to religious arbitration awards. To respond to such challenges, courts must treat religious law as law when defining the contractually adopted religious procedural rules and treat religious law as religion when reviewing precisely what the religious procedural rules require. On this account, constitutional and arbitration doctrine combine to insulate religious arbitration awards …

The Helmsley Case: An Illustration Of The Confused State Of The Law Surrounding The Manifest Disregard Of Law Doctrine As Applied To Arbitration, David Graff

Touro Law Review

No abstract provided.

Cash Of The Titans: Arbitrating Challenges To Executive Compensation, Kenneth Davis

Kenneth R. Davis

Excessive executive compensation is endemic to U.S. corporations, and the trend is spiraling out of control. To challenge excessive pay packages, shareholders sometimes institute derivative suits. This approach has had limited success, however, because several principles of law – most notably the business judgment rule – shield directors from liability for awarding exorbitant pay to high-level managers. The business judgment rule removes the unreasonableness of compensation packages from the reach of judicial review. This Article proposes that corporations duly approve procedures to arbitrate shareholder challenges to excessive compensation agreements. Arbitration is uniquely suited for this purpose. Arbitrators are not bound …

Protocols For International Arbitrators Who Dare To Settle Cases, Harold Abramson

Harold I. Abramson

The best time to settle an international business dispute can be after the international arbitration proceeding has been commenced. Just like in court litigation, parties may be ready to settle only after the adjudicatory process has begun and even has progressed. In court, judges commonly open the door to settlement; they hold settlement conferences and even actively participate in settlement negotiations. But arbitrators rarely open the door to settlement; when they do, they risk losing their jobs. So, what can international arbitrators safely do? What dare they do? In this article, the author explores the dilemma presented when one neutral …

Exceeding Their Powers: A Critique Of Stolt-Nielsen And Manifest Disregard, And A Proposal For Substantive Arbitral Award Review, Patrick Sweeney

Washington and Lee Law Review

No abstract provided.

“Final” Awards Reconceptualized: A Proposal To Resolve The Hall Street Circuit Split, Matthew J. Brown

Pepperdine Dispute Resolution Law Journal

This article discusses the current circuit split over the continued validity of manifest disregard of the law (“manifest disregard”) as a nonstatutory ground for vacatur of arbitration awards under the Federal Arbitration Act (“FAA”). Today, as commercial parties decide whether to include arbitration agreements in their business contracts, they weigh the risks of proceeding to arbitration versus litigation to resolve their disputes. This topic is especially pertinent in light of the current economic climate. Dicta from the U.S. Supreme Court’s decision in Hall Street Associates, L.L.C. v. Mattel, Inc. called into question the continued validity of nonstatutory grounds for vacatur. …

How To Avoid The Death Of Your Case By Two Billion Paper Cuts: Encouraging Arbitration As An Alternative Way To Resolve Costly Discovery Disputes, Tzipora Goodfriend-Gelernter

Pepperdine Dispute Resolution Law Journal

This article analyzes the costly effect of electronic information on discovery practice and advocates for the arbitration of discovery disputes. Part II discusses the background of electronic discovery, the evolution of our reliance on ESI (electronically stored information) as part of our modern day discovery practice, and the benefits and detriments of electronic discovery. Part III discusses the effects of our reliance on electronic discovery and the implications of those effects on litigating parties. It examines how the increasingly computer-based world of discovery has increased the cost of litigation disputes significantly and proposes using the patent arbitration model as a …

Precluding The Treasure Hunt: How The World Bank Group Can Help Investors Circumnavigate Sovereign Immunity Obstacles To Icsid Award Execution, Joseph M. Cardosi

Pepperdine Law Review

This Comment highlights the frustrating road that investors travel in search of assets when states do not honor arbitration awards and discusses how the World Bank Group can unify investor–state arbitrations to preclude such hollow victories for investors. Part II introduces the contemporary framework of investor–state arbitration, including an overview of the International Centre for Settlement of Investment Disputes (ICSID or the Centre), a summary of the scope of noncompliance with investor–state arbitration awards, and the unique ICSID enforcement mechanism used to address challenges to awards and noncompliance. Part III provides examples of the challenges investors face in award execution …

Secret Arbitration Or Civil Litigation?: An Analysis Of The Delaware Arbitration Program, Jores Kharatian

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

The Delaware Arbitration Experiment: Not Just A “Secret Court”, Jessica Tyndall

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Delaware's Closed Door Arbitration: What The Future Holds For Large Business Disputes And How It Will Affect M&A Deals, Myron T. Steele, Thomas J. Stipanowich, Robert Anderson, James R. Griffin, Katherine Blair, Monica Shilling

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program , Thomas J. Stipanowich

The Journal of Business, Entrepreneurship & the Law

The Delaware Arbitration Program established a procedure by which businesses can agree to have their disputes heard in an arbitration proceeding before a sitting judge of the state’s highly regarded Chancery Court. The Program arguably offers a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy. It also may enhance the reputation of Delaware as the forum of choice for businesses. But the Program’s ambitious intermingling of public and private forums brings into play the longstanding tug-of-war between the traditional view of court …

The Improbable Birth And Conceivable Death Of The Securities Arbitration Clinic, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This Article explores the birth, life, and possible death of securities arbitration clinics (SACs) in the United States. Part II of this Article describes the history of the securities arbitration clinic in the United States. Part III describes how a SAC operates and how SAC students help investors. Part IV reviews the pedagogical advantages and disadvantages of a SAC, and addresses the reluctance of many law schools to embrace this type of clinic. Part V concludes by predicting whether these clinics have a future in light of the modern challenges to clinical legal education.

After The Arbitration Award: Not Always Final And Binding, Jay E. Grenig

Marquette Sports Law Review

No abstract provided.

China And Cas (Court Of Arbitration For Sport), Shuli Guo

Marquette Sports Law Review

No abstract provided.

Nullità Di Clausole Compromissorie Negli Arbitrati Sportivi Per Squilibrio Strutturale Tra I Contraenti, Valerio Cosimo Romano

Valerio Cosimo Romano

No abstract provided.

Head Of The Class: Oxford Health Plans And The Uncertain Future Of Class Arbitrability Determinations, Kevin Sack

Journal of Dispute Resolution

Arbitration clauses allow contracting parties to resolve their contractual disputes without being subjected to lengthy and expensive judicial processes. Arbitrators are authorized to interpret contractual arbitration agreements to determine which issues the parties agreed to arbitrate. However, contract arbitration provisions are often silent as to the availability of class action procedures. Oxford Health Plans LLC v. Sutter held that, when parties expressly agree to allow an arbitrator to interpret whether their agreement allows class action arbitration, the arbitrator does not exceed his authority in doing so, regardless of interpretive error.' This note first discusses how the United States Supreme Court …

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 …

Arbitration And The Contract Exchange, Andrew A. Schwartz

Publications

A contract exchange, defined as an organized marketplace for the creation or trading of specific contracts, provides benefits to its members as well as the public at large. But legal disputes can arise on contract exchanges, just as they do anywhere else, and those disputes can be litigated, mediated, arbitrated, or resolved in some other way. This Essay claims that arbitration, rather than litigation, is a particularly useful and appropriate means for resolving exchange-related disputes, and that this is true not only for traditional contract exchanges, like the Chicago Board of Trade, but also for online "consumer contract exchanges," such …

Legal Uncertainty And Aberrant Contracts: The Choice Of Law Clause, William J. Woodward Jr.

Faculty Publications

Legal uncertainty about the applicability of local consumer protection can destroy a consumer’s claim or defense within the consumer arbitration environment. What is worse, because the consumer arbitration system cannot accommodate either legal complexity or legal uncertainty, the tendency will be to resolve cases in the way the consumer’s form contract dictates, that is, in favor of the drafter. To demonstrate this effect and advocate statutory change, this article focuses on fee-shifting statutes in California and several other states. These statutes convert very common one-way fee-shifting terms (consumer pays business’s attorneys fees if business wins but not the other way …

Usada The Unconquerable: The One-Side Nature Of The United States Anti-Doping Administration’S Arbitration Process, Brian A. Dziewa

Saint Louis University Law Journal

No abstract provided.

Book Review, Anna Spain

Publications

No abstract provided.

The Many Lanes Out Of Court: Against Privatization Of Employment Discrimination Disputes, Theresa M. Beiner

Maryland Law Review

No abstract provided.

“Sticky” Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal

Scholarly Works

We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court’s decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent …

No Alternative: Resolving Disputes Japanese Style, Eric Feldman

All Faculty Scholarship

This article critiques the simple black/white categorisation of mainstream versus alternative dispute resolution, and argues that what is needed is a cartography of dispute resolution institutions that maps the full range of approaches and traces their interaction. It sketches the first lines of such a map by describing two examples of conflict resolution in Japan. Neither can justly be called “alternative”, yet neither fits the mould of what might be called mainstream or classical dispute resolution. One, judicial settlement, focuses on process; the other, compensating victims of the Fukushima disaster, engages a specific event. Together, they help to illustrate why …

Overview Of Panel: Judges, Diplomats, And Peacebuilders: Evaluating International Dispute Resolution As A System, Anna Spain

Publications

No abstract provided.

The Trouble With Categories: What Theory Can Teach Us About The Doctrine-Skills Divide, Linda H. Edwards

Scholarly Works

We might not need another article decrying the doctrine/skills dichotomy. That conversation seems increasingly old and tired. But like it or not, in conversations about the urgent need to reform legal education, the dichotomy’s entailments confront us at every turn. Is there something more to be said? Perhaps surprisingly, yes. We teach our students to examine language carefully, to question received categories, and to understand legal questions in light of their history and theory. Yet when we talk about the doctrine/skills divide, we seem to forget our own instruction.

This article does not exactly take sides in the typical skills …