Law Commons^™

Designing A Court-Annexed Mediation Program For Civil Cases In Brazil: Challenges And Opportunities, Fernando V. Luiz

Fernando V Luiz

In this article, I demonstrate that mediation is an important form of dispute resolution, displaying benefits when compared with adjudication. I try to refine what mediation is by contrasting it with judicial settlement conferences and conciliation. Regarding the ongoing process in Brazil, I state that every society should adapt a mediation program that is attainable for its social-economic and cultural reality. Criticizing the current Brazilian policies, I present the positive and negative aspects of the Resolution n. 125 of the National Council of Justice (CNJ), analyzing a possible program design feasible for the country, focusing on the issues of funding, …

The Cost Of Doing Business In Asia: A Comparative Legal Study Of Environmental Regulations In The Emerging Markets Of Thailand, Malaysia, And Indonesia, Brooke R. Padgett

Brooke R. Padgett

Abstract: This article explores whether voluntary standards, customary law, or more binding bilateral investment treaties are best for corporations, the emerging markets of Thailand, Indonesia, and Malaysia, and the environment itself. While corporations, markets, and the environment facially seem to have divergent priorities, environmental disasters are more costly after the fact than they are to prevent so in reality their priorities may not be so different after all. Some of the potential issues the paper will examine and address are big picture macro level such as fairness to future generations, intergenerational rights; the actual cost through questions of polluter pays, …

Alternative Dispute Resolution And The Potential For Gender Bias, Leigh S. Goodmark

Leigh S. Goodmark

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 …

Time To Try Mediation Of International Commercial Disputes, Harold Abramson

Harold I. Abramson

No abstract provided.

Mediation Representation: Representing Clients Anywhere, Harold Abramson

Harold I. Abramson

No abstract provided.

The Court Of Arbitration For Sport And Its Global Jurisprudence: International Legal Pluralism In A World Without National Boundaries, Matthew J. Mitten

Matt Mitten

This article considers an issue of global importance that has received little scholarly attention: whether the Court of Arbitration for Sport (CAS), whose developing body of lex sportiva is a form of international legal pluralism, provides an appropriate level of procedural fairness and substantive justice to the world’s athletes, who are subject to its jurisdiction as a condition of their participation in Olympic and international sports competition. It provides an overview of the CAS arbitration system and the very limited scope of national judicial review of its arbitration awards decisions. It concludes that the CAS is a procedurally fair private …

An Impossible Reconciliation? Understanding Class-Action Waivers And Arbitration After American Express V. Italian Colors, Kristine A. Bergman

Kristine A Bergman

No abstract provided.

"What Did You Say?": Semantic Polysemy In California Juvenile Dependency Dispute Resolution, Kelly X. Ranasinghe

Kelly X Ranasinghe

Non-adversarial resolution of dependency cases is a statutorily mandated practice in California. Practitioners in California Juvenile Dependency courts attempt to settle cases without litigation, relying instead on negotiation between the various parties using informal discourse. This discourse utilizes polysemous dependency terms affecting the contextual understanding of statements by creating underlying ambiguity. The ambiguity of these terms creates communicative interference by engendering misunderstanding, lack of specificity and other communication problems. By recognizing polysemous qualities of core terms used in dependency discourse, practitioners can communicate more effectively and efficiently when resolving cases.

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

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

Valerio Cosimo Romano

No abstract provided.

Choosing The Law Of An Arbitration Agreement, Mohamed Raffa

Mohamed Raffa Dr.

The importance of choosing the law governing an arbitration agreement regardless of the choice of the seat. Parties to a contract may not be aware that an arbitration agreement is separable and distinct from the main contract between the parties.

What Has Sharia Got To Do With Arbitration, Mohamed Raffa

Mohamed Raffa Dr.

In Arbitration, parties do not seek revenge as in criminal proceedings, they are there to seek equitable justice in compensation. In Sharia, rules are set to eliminate equitable injustice. For cultural differences as well as misconceptions due in large to the influence of Sharia based local laws and the complicated enforcement schemes, many foreign investors have been reluctant to seat their arbitrations in countries that apply Sharia or to attach themselves to a contract with a ‘Sharia Arbitration’ clause.

Enforcement In A Regime Complex, Sergio Puig

Sergio Puig

Today’s international business environment is fundamentally different than that of fifty years ago. Traditional trade meant selling into one nation goods that were made in another; now trade is mostly about making things in multiple countries and selling them everywhere. Yet the two main branches of public international law that address international business—international trade law and international investment law—have their providence and continue to be viewed as two discrete, separate systems. Through case studies, this Article explores how trade and investment are converging, and the resulting difficulties governments and private interests face when international rules are enforced. The tasks of …

Invalid Testimony: Disability And Voice In The Criminal Procedure (Co-Authored With Osnat Ein-Dor) (Hebrew), Sagit Mor

Sagit Mor

This Article discuses the sociolegal reality that people with developmental and mental disabilities experience in their interaction with the criminal justice system and the challenges that the criminal system faces when it comes to deal with a case which involves a disabled person. It maintains that the barriers that disabled people face in criminal proceedings do not exist only in pre-trial stages, but also during the trial itself, since courts, too, are impacted by exclusionary legal rules and by cognitive schemas that express negative stereotypes. In 2005 a new law was introduced in Israel: Investigation and Testimony Proceedings (Accommodations for …

In Defense Of Idea Due Process, Mark C. Weber

Mark C. Weber

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

"Ancient" Wisdom: When East Meets West, Kenneth Fox, Joel Lee, Stephanie Mitchell, Vasudha Srinivasan

Kenneth H Fox

This article examines Eastern and Western "ancient wisdom" traditions and applies those traditions to cross-cultural negotiation practice.

Sovereign Immunity And Sovereign Debt, W. Mark C. Weidemaier

W. Mark C. Weidemaier

The Right To Defense Discovery In Plea Bargaining Fifty Years After Brady V. Maryland, Cynthia Alkon

Cynthia Alkon

No abstract provided.

International Adjudication Of Land Disputes: For Development And Transnationalism, Perry S. Bechky

Perry S. Bechky

This short article offers two observations about international adjudication of land disputes. First, the article shows that such adjudication is intended to further development, but that this goal is served better, if counter-intuitively, by rejecting the so-called Salini contribution-to-development test in favor of case-by-case adjudication on the merits. Second, the article locates such adjudication within the modern trend toward transnationalism, a trend that unites international investment law with human rights law. In light of these observations, the article concludes that international adjudication of land disputes may contribute to such human values as development, human rights, and the rule of law.

Beit Din's Gap-Filling Function: Using Beit Din To Protect Your Client, Michael A. Helfand

Michael A Helfand

This article considers how rabbinical courts play an important gap-filling role by providing parties with a forum to adjudicate a subset of religious disputes that could not be resolved in court. Under current constitutional doctrine, civil courts cannot adjudicate disputes that turn on religious doctrine and practice. By contrast, rabbinical courts can resolve such disputes--and the decisions of rabbinical courts can then be enforced by civil courts even as those same civil courts could not resolve the dispute in the first instance. In this way, rabbinical courts--like other religious arbitration tribunals--fill a void created by constitutional law, ensuring that parties …