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Full-Text Articles in Law

Valuation Standards For Calculating Icsid Awards, Jason A. Pan Sep 2012

Valuation Standards For Calculating Icsid Awards, Jason A. Pan

Jason A Pan

A common remedy in resolving disputes between foreign investors and their host governments is the award of fair market value as compensation. The International Centre for the Settlement of Investment Disputes (ICSID) is a popular forum for adjudicating such disputes, and since 1997 its caseload has taken off with the onset of globalization. As of 2011, 28% of ICSID cases resulted in an award to the claimant investor. Thus the valuation analysis behind ICSID awards is an important topic for both claimant investors and respondent governments. However, the nature of valuation analysis is that of a subjective and context-specific art ...


The Applicability Of Arbitration In The Americas: An Avant-Garde Approach To The Panama Convention, Elizabeth A. Briggs Jul 2012

The Applicability Of Arbitration In The Americas: An Avant-Garde Approach To The Panama Convention, Elizabeth A. Briggs

University of Miami Inter-American Law Review

No abstract provided.


Back To The Eternal Debate Of Mfn And Dispute Settlement: A Case Comment On Ics V. Republic Of Argentina, Antoine Martin Jun 2012

Back To The Eternal Debate Of Mfn And Dispute Settlement: A Case Comment On Ics V. Republic Of Argentina, Antoine Martin

Antoine Martin

Most-Favoured Nation (MFN) clauses and their possible extension to dispute settlement mechanisms are at the heart of a significant debate in international investments law. This debate is very lively but it is currently unsettled, as demonstrated by persisting disagreements between opposite Schools of thoughts and multiple inconsistencies in arbitral decisions. MFN clauses were reconsidered recently following a claim brought by ICS Inspection and Control Services Limited against Argentina before the Permanent Court of Arbitration (PCA). The PCA arbitrators rendered a decision in February 2011 in which jurisdiction was rejected together with the idea that a MFN can be extended to ...


Sports Law Arbitration By Cas: Is It The Same As International Arbitration?, Richard H. Mclaren May 2012

Sports Law Arbitration By Cas: Is It The Same As International Arbitration?, Richard H. Mclaren

Pepperdine Law Review

No abstract provided.


Pre-Hearing Techniques To Promote Speed And Cost-Effectiveness--Some Thoughts Concerning Arbitral Process Design , Jack J. Coe Jr. Apr 2012

Pre-Hearing Techniques To Promote Speed And Cost-Effectiveness--Some Thoughts Concerning Arbitral Process Design , Jack J. Coe Jr.

Pepperdine Dispute Resolution Law Journal

This essay considers factors and pre-hearing techniques that bear on international arbitration hearings by attempting to answer this question: "What can be done to promote speed and efficiency in the hearing process?" First, it offers general observations, including the goals and by-products of efficiency, issues related to defining terms and frames of reference, the flexibility of arbitration practice techniques, and the role of technology in arbitration proceedings. Then, it discusses specific factors that influence the expeditiousness of arbitration, especially the arbitration clause and its use to define critical elements of the proceedings, such as situs, number of arbitrators, and time ...


Summary Disposition: The Only Way Out Is Through?, Lauran San Roman Guijarro Apr 2012

Summary Disposition: The Only Way Out Is Through?, Lauran San Roman Guijarro

University of Miami Law Review

No abstract provided.


A Civil Matter For A Common Expert: How Should Parties And Tribunals Use Experts In International Commercial Arbitration?, Ruth Fenton Mar 2012

A Civil Matter For A Common Expert: How Should Parties And Tribunals Use Experts In International Commercial Arbitration?, Ruth Fenton

Pepperdine Dispute Resolution Law Journal

How should parties and tribunals use experts in international commercial arbitration? Are the common and civil law traditions blurred or blended, or should there be specific practices for international arbitration? To answer these questions, it is necessary to look at the common and civil law approaches to the use of experts in international commercial arbitration. This article will look at circumstances that may require an expert and arbitration laws and rules that assist parties and arbitrators in appointing an appropriate expert. The article highlights and discusses differences and similarities between civil and common law traditions and draws a conclusion as ...


The More Favorable Regime For Confirming International Arbitral Awards Made In The U.S.: A Choice Within The ‘Overlapping Coverage’ Of Faa Chapters One And Two, Suyash Paliwal Mar 2012

The More Favorable Regime For Confirming International Arbitral Awards Made In The U.S.: A Choice Within The ‘Overlapping Coverage’ Of Faa Chapters One And Two, Suyash Paliwal

Suyash Paliwal

According to U.S. courts, Chapters One and Two of the Federal Arbitration Act provide “overlapping coverage” over arbitral awards that were made in the U.S. and also fall under the New York Convention. The meaning of “overlapping coverage” under U.S. arbitral law remains unclear, but affects the defeated party’s ability to challenge the conversion of these awards to court judgments and, consequently, the parties’ decision to seat an arbitration in the U.S. According to every Circuit that has addressed the question, when a U.S.-rendered award is domestic, it is subject to summary, challenge-free ...


International Arbitral Appeals: What Are We So Afraid Of? , Erin E. Gleason Mar 2012

International Arbitral Appeals: What Are We So Afraid Of? , Erin E. Gleason

Pepperdine Dispute Resolution Law Journal

This article will explore the advantages of instituting appellate mechanisms in investor-state disputes and international commercial arbitration. Part II begins with a review of the WTO Appellate Body's development and workings, followed by an analysis of other appellate procedures for international trade law arbitration, including the MERCOSUR system's Permanent Court and the Grain and Feed Trade Association's appeals process. Part III examines the current methods for reviewing investor-state arbitration awards under ICSID and NAFTA. Part III goes on to advocate for the creation of an Appeals Facility, separate from current arbitral institutions, which would be empowered to ...


The Iranian Hostage Crisis And The Iran-U.S. Claims Tribunal: Implications For International Dispute Resolution And Diplomacy, Warren Christopher, Richard M. Mosk Mar 2012

The Iranian Hostage Crisis And The Iran-U.S. Claims Tribunal: Implications For International Dispute Resolution And Diplomacy, Warren Christopher, Richard M. Mosk

Pepperdine Dispute Resolution Law Journal

This is the twenty-fifth anniversary of what has become known as the Iranian Hostage Crisis. We shall look back on those events in order to point to possible issues, lessons and solutions for the future.


Comparative Law As Rhetoric: An Analysis Of The Use Of Comparative Law In International Arbitration , Frédéric Gilles Sourgens Feb 2012

Comparative Law As Rhetoric: An Analysis Of The Use Of Comparative Law In International Arbitration , Frédéric Gilles Sourgens

Pepperdine Dispute Resolution Law Journal

The bulk of the comparative work of an arbitration counsel will go towards finding effective means of persuading a tribunal. It is part of his advocacy tool kit. Typically, there are three distinct ways in which counsel would then deploy these tools in practice: (1) he could use comparative law to explain law foreign to the tribunal in a manner helpful to his case, (2) he could use it as a means to close legal gaps in the law applicable to the dispute, and (3) he could use it to extract general principles of international law or trade usages. This ...


Balancing Transparency: The Value Of Administrative Law And Mathews-Balancing To Investment Treaty Arbitrations, Cornel Marian Feb 2012

Balancing Transparency: The Value Of Administrative Law And Mathews-Balancing To Investment Treaty Arbitrations, Cornel Marian

Pepperdine Dispute Resolution Law Journal

Greater reliance on arbitration to resolve cross-border disputes raises concern with the adequacy of arbitration procedural rules. In investment arbitration, transparency in the arbitrable proceedings is closely linked to the public need to review state conduct. This article draws on the responsibility of the arbitrator to balance the interests involved in an arbitration. Due consideration is given to the Global Administrative Law Project, which views many challenges affecting arbitration as the first step towards developing a global unifying standard of procedure. American domestic administrative law provides sufficient guidance in determining adequate procedure. The Mathews standard is of great value to ...


International Commercial Arbitrators' Approaches To Contractual Interpretation, Joshua D H Karton Jan 2012

International Commercial Arbitrators' Approaches To Contractual Interpretation, Joshua D H Karton

Joshua Karton

This article considers the available international arbitral awards that involve interpretation of a contract. It divides the awards according to the applicable substantive law, and concludes that international commercial arbitrators generally follow the interpretive rules prescribed by the laws of civil law jurisdictions, but sometimes depart from common law interpretive methods. When international arbitrators depart from the applicable law, or when they apply general principles of international law or act as amiables compositeurs, they tend to follow a civil law approach. They see discerning the true (subjective) common intention of the parties as the goal of contractual interpretation, and while ...


Building Bridges To Consumer Remedies In International Econflicts, Amy J. Schmitz Jan 2012

Building Bridges To Consumer Remedies In International Econflicts, Amy J. Schmitz

Faculty Publications

Consumer purchases over the Internet (“ePurchases”) are on the rise, thereby causing an increase in conflicts regarding these purchases (“eConflicts”). Furthermore, these conflicts are increasingly international as consumers purchase goods over the Internet not knowing or caring where the seller is physically located. The problem is that if the purchase goes awry, consumers are often left without recourse due to the futility of pursing international litigation and the textured law and policy regarding enforcement of private dispute resolution procedures, namely arbitration. The United States strictly enforces arbitration contracts in business-to-consumer (“B2C”) relationships, while other countries have refused or limited enforcement ...


The Public Interest In International Arbitration, Jan Paulsson Jan 2012

The Public Interest In International Arbitration, Jan Paulsson

Articles

No abstract provided.


Salient Issues Of International Arbitration, Juan Fernandez-Armesto Jan 2012

Salient Issues Of International Arbitration, Juan Fernandez-Armesto

American University International Law Review

No abstract provided.


Introduction: Center On Human International Commercial Arbitration Symposium: Salient Issues In International Commercial Arbitration, Horacio A Grigera Naon Jan 2012

Introduction: Center On Human International Commercial Arbitration Symposium: Salient Issues In International Commercial Arbitration, Horacio A Grigera Naon

American University International Law Review

No abstract provided.


Good Faith In International Arbitration, Bernardo M. Cremades Jan 2012

Good Faith In International Arbitration, Bernardo M. Cremades

American University International Law Review

No abstract provided.


Convergence And Divergence In International Dispute Resolution Symposium, Peter B. Rutledge Jan 2012

Convergence And Divergence In International Dispute Resolution Symposium, Peter B. Rutledge

Scholarly Works

Drawing on the literature, two strands help to frame this paper. The first concerns why parties choose to arbitrate. The second strand is the literature documenting the efforts within the arbitration industry to encourage the use of arbitraments.

My goal in this paper is to bridge a gap between this second strand and the first, more theoretical strand. What is missing from both strands is a concrete, system-wide understanding about why parties opt for arbitration as opposed to other forms of dispute resolution. In other words, I seek both to give concrete understanding to the theoretical model articulated in the ...


Conflict Of Interests: Seeking A Way Forward On Publication Of International Arbitral Awards, Joshua D H Karton Dec 2011

Conflict Of Interests: Seeking A Way Forward On Publication Of International Arbitral Awards, Joshua D H Karton

Joshua Karton

There now appears to be general agreement that greater publication of awards would benefit the international commercial arbitration system, yet most awards remain unpublished. This article explains the current state of affairs by reference to the conflict between party and systemic interests. Since international arbitration is a private, consent-based system, party interests in keeping awards confidential are likely to trump systemic interests in publishing them—even if those systemic interests align with the long-term interests of commercial parties generally.

The conflict of interests not only explains why confidentiality of international arbitral awards remains the rule, it also points the way ...