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Dispute Resolution In The Digital Age - Online Dispute Resolution, Amy J. Schmitz

Open Educational Resources

Dispute Resolution in the Digital Age includes the resources created and used by Professor Amy J. Schmitz at the University of Missouri School of Law to teach online dispute resolution. These materials are created as as open educational resources under a Creative Commons BY-NC 4.0 license. The materials may be shared and adapted as long as Prof. Schmitz receives attribution and the use is non-commercial.

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

The History And The Current Development Of Commercial Arbitration In Kazakhstan, Venera Konussova

Venera Konussova

Kazakhstan has recently been taking steps to a new wave of modernization in order to enter 30 the most developed countries of the world. Such ambitious goal requires not only fast and effective development of all spheres of the economy but also significant improvement of legislation. Revision of legislation in the field of arbitration seeks a twofold goal; to create favorable conditions for the civil rights protection, and to improve the investment climate in particular. In order to obtain this goal, the Draft Law on Arbitration largely reconsidered existing legislation by incorporating progressive regulations, which help to overcome long lasting …

The Use Of The Proportionality Principle To Distinguish Compensatory Indirect Expropriation From Regulatory Measures, Anca T. Muir

Anca T Muir

The Investor State Dispute Settlement (ISDS) system has been criticized recently as a way for foreign corporations to counter a national government’s right to regulate. A subject of much of this scrutiny is the compensation requested by foreign investors when the host state needs to regulate for the public interest.

The issue of compensation for actions of indirect expropriation is a controversial issue, especially when the host state uses its police power to regulate in the public interest. When this occurs, it can create a conflict in which an investor claims that his investment was reduced to nothing by the …

Curbing The Runaway Arbitrator In Commercial Arbitration: Making Exceeding The Powers Count, Sarah Cole

Sarah Cole

Arbitration is in crisis. Under fire as an oppressive, claim-suppressing method of dispute resolution, imposed by businesses upon unsuspecting employees and consumers, arbitration is also becoming increasingly unpopular with its original designers – businesses in commercial disputes with other businesses. While academic commentators spill considerable ink assessing the propriety of businesses imposing pre-dispute arbitration agreements on consumers and employees, to date they have paid scant attention to the reasons underlying business flight from arbitration as a preferred method for resolving disputes with other businesses. Empirical research sheds some light on this issue – surveys reveal that in-house counsel believe that …

Umbrella Clauses In The Icsid Arbitration, Ilyas Golcuklu

ILYAS GOLCUKLU

This article aims to discuss two main approaches, namely broad interpretation and restrictive interpretation, adopted by various arbitral tribunals to deal with umbrella clause claims brought in international investment disputes, especially under the ICSID[1] arbitration.

The first section of the article tries to give readers a general idea about the BITs and the definition of umbrella clauses by heavily emphasizing the importance of such clauses in international investment arbitration. This section also gives a brief historical background with regard to emergence of umbrella clauses and analyzes the rationale behind this emergence while giving some actual wording of such clauses …

Why Mediators Should Be Regulated, Art Hinshaw

Art Hinshaw

In the United States consumers engage mediators on a caveat emptor basis. The regulatory scheme for mediators is a patchwork of mediation referral organizations which allows unscrupulous mediators to exploit consumers with little to no recourse. One egregious example is that of Gary J. Karpin, a disbarred lawyer turned divorce mediator, who used the mediation process to con forty people into giving him approximately $250,000 before taking up residence in prison. In an age when everyone from doctors to cosmetologists is subject to occupational regulation, why are mediators virtually unregulated? Mediators have long been divided on the question of regulation. …

The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad

Zeina Jallad

The Power of the Body:

Analyzing the Logic of Law and Social Change in the Arab Spring

Abstract:

Under conditions of extreme social and political injustice - when human rights are under the most threat - rational arguments rooted in the language of human rights are often unlikely to spur reform or to ensure government adherence to citizens’ rights. When those entrusted with securing human dignity, rights, and freedoms fail to do so, and when other actors—such as human rights activists, international institutions, and social movements—fail to engage the levers of power to eliminate injustice, then oppressed and even quotidian …

Deliberative Engagement Within The World Trade Organization: A Functional Substitute For Authoritative Interpretations, Cosette D. Creamer, Zuzann Godzimirska

Cosette D Creamer

The transition from the General Agreement on Tariffs and Trade dispute settlement proceedings to the Dispute Settlement Mechanism (DSM) of the World Trade Organization represented a notable instance of judicialization within international economic governance, in that it significantly increased the independence of the DSM from direct government control. Since they began ruling on trade conflicts in 1995, the WTO’s adjudicative bodies have enjoyed a greater degree of interpretive autonomy than initially intended by states parties. This development largely stems from deadlock within the political organs of the Organization resulting in non-use of one of the primary means of legislative response—authoritative …

Fitting The Forum To The Pernicious Fuss: A Dispute System Design To Address Implicit Bias And 'Isms In The Workplace, Elayne E. Greenberg

Elayne E Greenberg

This proposal is a heretofore untaken first step in the dispute system design for implicit bias. It offers a different type of thinking about workplace discrimination caused by implicit bias and a different way to resolve it.

Until now, workplace discrimination caused by implicit biases has gone unabated, because the courts and EEOC mediation programs are better designed to address workplace discrimination caused by explicit biases. As the social science research clarifies, there are salient differences between workplace discrimination animated by implicit biases and workplace discrimination shaped by explicit biases discrimination. We now understand that we all have implicit biases, …

Crowdsourcing (Bankruptcy) Fee Control, Matthew Bruckner

Matthew Adam Bruckner

In this article, I explore how crowdsourcing can help reduce the cost of professional representation in corporate bankruptcy cases. The cost of professional representation in bankruptcy cases is currently a hot topic, with oral argument haven taken place before the U.S. Supreme Court in Baker Botts L.L.P. v. Asarco, L.L.C. in February 2015, which case addressed various issues raised in my article. In brief, the fees of lawyers, investment bankers, and other bankruptcy professionals has been spiraling out of control because chapter 11’s existing fee control system is broken. That system can neither identify nor control professional overcharging, which empirical …

Rescuing Arbitration In The Developing World: The Extraordinary Case Of Georgia, Steven Austermiller

Steven Austermiller

The country of Georgia has a long and interesting history with arbitration. From “telephone justice” to the criminal underworld to legitimacy, Georgian arbitration has survived many iterations. Now, as Georgia begins the EU accession process, it has a new arbitration law that incorporates international norms. This article analyzes the law, explores how arbitration has been implemented thus far, and discusses some of the challenges that remain. Drawing on his U.S. practice experience in arbitration and his work managing legal reform programs in Georgia and other countries, the author recommends some important changes to Georgia’s new arbitration regime. A particular area …

Holding Standards For Randsome: A Remedial Perspective On Rand Licensing Commitments, Layne S. Keele

Layne S. Keele

In Apple, Inc. v. Motorola, Inc., 757 F.3d 1286 (Fed. Cir. 2014), the four federal judges who considered the case—Judge Posner by designation at the trial level, and three Federal Circuit judges on appeal—all expressed differing opinions on the question of whether and to what extent extraordinary patent remedies should be available for the infringement of standard-essential patents. This article aims to simplify this muddled and confusing topic.

The article employs a teleological approach, examining the purposes behind remedies in general, the purposes of extraordinary remedies in patent law, and the purposes of RAND commitments (commitments to license standard-essential …

When Peace Is Not The Goal Of A Class Action Settlement, D. Theodore Rave

D. Theodore Rave

On the conventional account, a class action settlement is a vehicle through which the defendant buys peace from the class action lawyer. That single transaction will preclude future litigation by all class members. But peace, at least through preclusion, may not always be the goal. In a recent Fair Credit Reporting Action (FCRA) case, In re Trans Union Privacy Litigation, the parties agreed to a class action settlement that did not preclude individual claims. The 190 million class members surrendered only their rights to participate in a future class or aggregate action; they remained free to march right back into …

“Whimsy Little Contracts” With Unexpected Consequences: An Empirical Analysis Of Consumer Understanding Of Arbitration Agreements, Jeff Sovern

Jeff Sovern

Arbitration clauses have become ubiquitous in consumer contracts. These arbitration clauses require consumers to waive the constitutional right to a civil jury, access to court, and, increasingly, the procedural remedy of class representation. Because those rights cannot be divested without consent, the validity of arbitration agreements rests on the premise of consent. Consumers who do not want to arbitrate or waive their class rights can simply decline to purchase the products or services covered by an arbitration agreement. But the premise of consent is undermined if consumers do not understand the effect on their procedural rights of clicking a box …

Just When You Thought You Were Finished! A Mediator's View Of Bock V. Hansen, Charles Ferguson

Charles Ferguson

In what should have been an ordinary coverage dispute the California First District Court of Appeal in Bock v. Hansen, 225 Cal. App. 4th 215 (2014) has attracted considerable commentary by authorizing the plaintiff husband and wife to sue an individual employee of their home insurer for negligently misstating certain provisions of their policy to them while adjusting their claim. Mostly overlooked in the ensuing discussions of the case has been the fact that the case was settled before the decision was issued. Here the mediator analyzes why it would have been prudent for the court to wait for a …

The Internet Is The New Public Forum: Why Riley V. California Supports Net Neutrality, Adam Lamparello

Adam Lamparello

Technology has ushered civil liberties into the virtual world, and the law must adapt by providing legal protections to individuals who speak, assemble, and associate in that world. The original purposes of the First Amendment, which from time immemorial have protected civil liberties and preserved the free, open, and robust exchange of information, support net neutrality. After all, laws or practices that violate cherished freedoms in the physical world also violate those freedoms in the virtual world. The battle over net neutrality is “is absolutely the First Amendment issue of our time,” just as warrantless searches of cell phones were …

The Implication Of The Icsid Convention, The Resurrection Of The ‘International Minimum Standard’ And The Theory Of Internationalization Of State Contracts In Investment Treaty Arbitration., Felix O. Okpe

Felix O. Okpe

Under international investment law, it is axiomatic that the potential for investment disputes is rife in the conduct of foreign investments in host States. This is often the case where foreign investors allege that an act or omission attributable to the host State negatively impacts the investor’s proprietary interests. The settlement of the envisaged investment disputes is more common where the host State is a developing country in the context of the ICSID Convention. As a result, what has become paramount in the arbitration of investment disputes is the protection of foreign investment in the host State. This way, the …

Behavioral International Law, Tomer Broude

Tomer Broude

Economic analysis and rational choice have in the last decade made significant inroads into the study of international law and institutions, relying upon standard assumptions of perfect rationality of states and decision-makers. This approach is inadequate, both empirically and in its tendency towards outdated formulations of political theory. This article presents an alternative behavioral approach that provides new hypotheses addressing problems in international law while introducing empirically grounded concepts of real, observed rationality. First, I address methodological objections to behavioral analysis of international law: the focus of behavioral research on the individual; the empirical foundations of behavioral economics; and behavioral …

Endangered Element Of Icsid Arbitral Practice: Investment Treaty Arbitration, Foreign Direct Investment And The Promise Of Economic Development In Host States., Felix O. Okpe

Felix O. Okpe

The omission to define the term ‘investment’ in the ICSID Convention is one of the most critical decisions that have led to the inconsistent jurisprudence and the resulting debate associated with the propriety of the ICSID Convention and investment treaty arbitration. The legislative history and the circumstances leading to the birth of the ICSID Convention strongly suggest that its main objective is the protection and promotion of economic development in the host State. Most of the propositions aimed at giving a meaning to the term ‘investment’ in ICSID arbitral practice have focused more on whether the scope of the meaning …

The Recognition Of Indigenous Peoples’ Land: Application Of The Customary Land Rights Model On The Bedouin Case, Morad Elsana

Morad Elsana

ABSTRACT This paper introduces new possibilities for the recognition of Bedouin land in Israel. It shows that the application of the prevalent methods of indigenous land recognition is possible in the Bedouin case, and it would bring legal recognition of Bedouin land rights. The paper first presents the recognition of indigenous peoples land right in Canada, Australia, and other countries, while concentrating on the native title doctrine and the adoption of indigenous customary law. It shows how many colonial legal systems eventually discovered that their judicial systems included principles that recognize indigenous customary land rights. The application of such principles …

Mediating Theft, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Mediating Theft, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Mediating Theftv, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Incorporation By Reference In Maritime Arbitration, Arjya B. Majumdar

Arjya B Majumdar

This paper deals with maritime arbitration in general and in particular, the applicability of arbitration clauses in charterparties incorporated by reference into bills of lading. Following a discussion on the origin of maritime arbitration we see how dispute resolution in the shipping industry had initially been associated with informal procedures involving little or no dependence upon courts and other systems of formal dispute resolution methods, thus bringing about a special nexus between the maritime industry and non-judicial methods of dispute resolution- such as arbitration.

One of the key requirements of an arbitration to take place is that the arbitration agreement …

Science And Compliance In The Arctic: A Constructivist Approach To The Un Commission On The Limits Of The Continental Shelf, Sari M. Graben, Peter Harrison

Sari M Graben

The United Nations Commission on the Limits of the Continental Shelf is expected to play an essential role in delineating the rights of the Arctic states to sea bed resources in the Arctic Ocean. Positivist theories of international law generally source Arctic state compliance to the binding effect of Article 76 of the UN Convention on the Law of the Sea. However, positivist explanations fail to answer why the Arctic states, which are authorized to establish their own limits, would accept the sovereignty costs associated with the Commission’s legal and scientific interpretations. In order to better understand how the Commission …

Why Is International Law Changing? Primary Factors In The Greater Complexity Of International Law, Marcelo Dias Varella

Marcelo D. Varella

This paper examines factors of change in post-national law, particularly the effects of globalization on the international legal order. The end of the cold enabled the strengthening of international law through new legal norms and the emergence of post-national law. Among the principal factors accelerating the internationalization of law has been the emergence of a multipolar political and economic order. In the political realm, the end of the bipolar system between the United States and the Soviet Union allowed the emergence of various actors and made possible the construction of power in the international sphere through legal rules. Economically, a …

Relieving The Congestion: The Eastern Interconnection Planning Collaborative, Michelle C. Bailey

Michelle C Bailey

Abstract for: RELIEVING THE CONGESTION: THE EASTERN INTERCONNECTION PLANNING COLLABORATIVE By: Michelle Bailey April, 2013 Congestion within the electric transmission grid, coupled with an absence of transmission, present the most significant barriers to integration of renewable energy sources and advancement of the electric grid towards a more reliable, responsive and efficient energy future. Responding to the critical need for new transmission, however, is a complex, protracted, and difficult process. The key barriers to transmission development are transmission siting and permitting, and cost allocation of transmission projects. Both of these hurdles are exacerbated by the fact that transmission project siting and …

At&T V. Concepcion: The Problem Of A False Majority, Lisa Tripp, Evan R. Hanson

Lisa Tripp

The Supreme Court’s 2011 decision in AT&T v. Concepcion is the first case where the Supreme Court explores the interplay between state law unconscionability doctrine and the vast preemptive power of the Federal Arbitration Act (FAA). Although it is considered by many to be a landmark decision which has the potential for greatly expanding the already impressive preemptive power of the FAA, something is amiss with Concepcion.

AT&T v. Concepcion is ostensibly a 5-4 majority decision with a concurring opinion. However, the differences in the majority and concurring opinions are so profound that it appears that Justice Thomas actually …

A Decade Of Progress: Promising Models For Children Found In The Turkish Juvenile Justice System, Brenda A. Mckinney, Lauren Salins

Brenda A McKinney

Turkey has improved its approach to interacting with children in conflict with the law over the past decade, moving closer to a system that ensures its children the opportunity to strive for a better future. This Article focuses on two promising Turkish reforms that hold potential to improve juvenile justice systems internationally, namely: open model incarceration and Turkey’s approach to diversion. This Article demonstrates how a child-centered juvenile justice system can improve public safety and outcomes for youth. It also addresses potential challenges to each model and identifies broader issues that may require reform.