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Dispute Resolution and Arbitration

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2012

Arbitration

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Articles 1 - 30 of 98

Full-Text Articles in Law

Whose Regulatory Interests? Outsourcing The Treaty Function, Stephen B. Burbank Dec 2012

Whose Regulatory Interests? Outsourcing The Treaty Function, Stephen B. Burbank

All Faculty Scholarship

In this article I describe the status quo in the area of foreign judgment recognition, with attention to the tension between domestic interests and international cooperation. Precisely because the future of the status quo is in doubt, I then consider current proposals for change, particularly the effort to implement the Hague Choice of Court Convention in the United States. Prominent among the normative questions raised by my account is whose interests, in addition to the litigants’ interests, are at stake – those of the United States, those of the several states, or those of interest groups waving a federal or …

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Killing Them With Kindness: Examining "Consumer-Friendly" Arbitration Clauses After At&T Mobility V. Concepcion, Myriam E. Gilles Dec 2012

Killing Them With Kindness: Examining "Consumer-Friendly" Arbitration Clauses After At&T Mobility V. Concepcion, Myriam E. Gilles

Articles

The article focuses on the U.S. Supreme Court case AT&T Mobility LLC v. Concepcion, in which California's "Discover Bank rule" was struck by the Court under the Federal Arbitration Act, which was upheld by the California Supreme Court in the court case Discover Bank v. Superior Court. It provides information that the rule is a judge-made rule which depicts that class action waivers are unforceable in arbitration agreements if such agreements are mentioned in standard form consumer contracts.

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Prospects For Satisfactory Dispute Resolution Of Private Commercial Disputes Under The North American Free Trade Agreement, Jonathan I. Miller Nov 2012

Prospects For Satisfactory Dispute Resolution Of Private Commercial Disputes Under The North American Free Trade Agreement, Jonathan I. Miller

Pepperdine Law Review

No abstract provided.

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Recourse Against An International Arbitration Award Made In Singapore, Darius Chan Nov 2012

Recourse Against An International Arbitration Award Made In Singapore, Darius Chan

Research Collection Yong Pung How School Of Law

In Astro Nusantara International BV v PT Ayunda Prima Mitra [2012] SGHC 212, the Singapore High Court set out the available recourse against an international arbitration award made in Singapore. This case has significant implications for Singapore as a seat of arbitration, and this note contrasts the position between Singapore and Hong Kong against the backdrop of this case. In October 2008, after a failed joint venture, the Claimants, which belonged to the Astro group of companies of Malaysia, commenced arbitration in Singapore against the Respondents, which belonged to the Lippo group of companies of Indonesia. In May 2009, the …

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"Riding With The Cops And Cheering For The Robbers:" Employee Speech, Doctrinal Cubbyholes, And The Duty Of Loyalty, Marvin F. Hill Jr., James A. Wright Oct 2012

"Riding With The Cops And Cheering For The Robbers:" Employee Speech, Doctrinal Cubbyholes, And The Duty Of Loyalty, Marvin F. Hill Jr., James A. Wright

Pepperdine Law Review

No abstract provided.

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Protecting The Public, Not Anyone's Turf: The Unlicensed Practice Of Law In Securities Arbitration , John P. Cleary Oct 2012

Protecting The Public, Not Anyone's Turf: The Unlicensed Practice Of Law In Securities Arbitration , John P. Cleary

Pepperdine Law Review

No abstract provided.

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Bailey, Robert Arbitration Chart, Edmund P. Edmonds Oct 2012

Bailey, Robert Arbitration Chart, Edmund P. Edmonds

Arbitrator Charts

No abstract provided.

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Shriftman, Elliott Arbitration Chart, Edmund P. Edmonds Oct 2012

Shriftman, Elliott Arbitration Chart, Edmund P. Edmonds

Arbitrator Charts

No abstract provided.

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Mandatory Predispute Consumer Arbitration, Structural Bias, And Incentivizing Procedural Safeguards, Nancy A. Welsh Oct 2012

Mandatory Predispute Consumer Arbitration, Structural Bias, And Incentivizing Procedural Safeguards, Nancy A. Welsh

Faculty Scholarship

Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Mandatory predispute arbitration has generated the most controversy because it appears beset with structural bias. The recent cases of AT&T Mobility LLC v. Concepcion and Compucredit Corp. v. Greenwood have raised additional concerns as the Supreme Court has announced that corporations can force consumers to arbitrate their private and statutory claims and give up their rights to pursue class relief. This Article begins by arguing that the Supreme Court’s enthusiastic embrace of mandatory predispute arbitration should be understood primarily …

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Empowering Settlors: How Proper Language Can Increase The Enforceability Of A Mandatory Arbitration Provision In A Trust, S. I. Strong Oct 2012

Empowering Settlors: How Proper Language Can Increase The Enforceability Of A Mandatory Arbitration Provision In A Trust, S. I. Strong

Faculty Publications

With hostile trust litigation reaching epidemic proportions, many people within the trust industry are interested in identifying new and less expensive ways to resolve trust-related disputes. Arbitration is often proposed as a possible alternative, although questions exist about whether and to what extent a mandatory arbitration provision found in a trust will be considered enforceable by a court. Up until now, most commentary in this area of law has focused on purely jurisprudential issues, with little attention being paid to the practical efforts that settlors can make to increase the enforceability of arbitration provisions found in trusts. This Article takes …

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Introduction & Coda, Multi-Party Dispute Resolution, Democracy And Decision Making: Vol. Ii Of Complex Dispute Resolution, Carrie Menkel-Meadow Sep 2012

Introduction & Coda, Multi-Party Dispute Resolution, Democracy And Decision Making: Vol. Ii Of Complex Dispute Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The Complex Dispute Resolution series collects essays on the development of foundational dispute resolution theory and practice and its application to increasingly more complex settings of conflicts in the world, including multi-party and multi-issue decision making, negotiations in political policy formation and governance, and international conflict resolution. Each volume contains an original introduction by the editor, which explores the key issues in the field. All three volumes feature essays which span an interdisciplinary range of fields, law, political science, game theory, decision science, economics, social and cognitive psychology, sociology and anthropology and consider issues in the uses of informal and …

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Bound To Arbitrate, Jon H. Sylvester Jul 2012

Bound To Arbitrate, Jon H. Sylvester

Publications

When can arbitration be compelled by a party who did not sign the agreement containing the arbitration provision? This question was raised recently in a well-publicized and ongoing San Francisco Superior Court lawsuit alleging gender bias and discrimination at the Silicon Valley venture capital firm Kleiner Perkins Caufield & Byers.

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The Privatization Of Civil Justice: An Exposition On New York's Prompt Payment Law And Its Imposition Of Mandatory Arbitration, James M. Tsimis Jul 2012

The Privatization Of Civil Justice: An Exposition On New York's Prompt Payment Law And Its Imposition Of Mandatory Arbitration, James M. Tsimis

Touro Law Review

No abstract provided.

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Leveling Up To Immersive Dispute Resolution (Idr) In 3-D Virtual Worlds: Learning And Employing Key Idr Skills To Resolve In-World Developer-Participant Conflicts, Lucille M. Ponte Jul 2012

Leveling Up To Immersive Dispute Resolution (Idr) In 3-D Virtual Worlds: Learning And Employing Key Idr Skills To Resolve In-World Developer-Participant Conflicts, Lucille M. Ponte

University of Arkansas at Little Rock Law Review

This article proposes a new conflict resolution approach called "immersive dispute resolution" (IDR) through the use of existing communication and graphical technology in 3-D virtual worlds as well as the collaborative and strategic thinking skills virtual world participants acquire in digital experiences. Specifically, this article begins by discussing research on learning in virtual worlds, with an emphasis on key collaborative conflict resolution skills accumulated through play in virtual environments. Next, this article discusses current dispute resolution processes available in certain 3-D worlds which fail to leverage the technology or collaborative skills available in these environments, and finishes with a call …

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Resolving Mass Legal Disputes Through Class Arbitration: The United States And Canada Compared, S. I. Strong Jul 2012

Resolving Mass Legal Disputes Through Class Arbitration: The United States And Canada Compared, S. I. Strong

Faculty Publications

This article compares three issues that have arisen as a result of recent Supreme Court decisions in both countries: the circumstances in which class arbitration is available; the procedures that must or may be used; and the nature of the right to proceed as a class. In so doing, the article not only offers valuable lessons to parties in the U.S. and Canada, but also provides observers from other countries with a useful framework for considering issues relating to the intersection between collective relief and arbitration.

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Bit Unfair: An Illustration Of The Backlash Against International Arbitration In Latin America, A, David Ma Jul 2012

Bit Unfair: An Illustration Of The Backlash Against International Arbitration In Latin America, A, David Ma

Journal of Dispute Resolution

With the survival of BITs at fulcrum, the Second Circuit recently decided a highly publicized and notorious case applying international arbitration in Chevron Corp. v. Republic of Ecuador. This comment will discuss Chevron and its effects within the wider corpus of BIT international arbitration to provide an illustration of the current debate and status of the BIT framework. The purported benefits BITs provide to signatory countries exist theoretically, and to test these theoretical underpinnings, this comment will discuss Chevron for the purpose of providing real context to a predominately academic debate. Chevron shall demonstrate that theoretical effects and practical effects …

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Private Resolution Of Public Disputes: Employment, Arbitration, And The Statutory Cause Of Action, Griffin Toronjo Pivateau Jun 2012

Private Resolution Of Public Disputes: Employment, Arbitration, And The Statutory Cause Of Action, Griffin Toronjo Pivateau

Pace Law Review

In this Article, I argue that arbitration agreements fall somewhere along the middle of the rights/contract continuum. My understanding of the nature of arbitration agreements relies on a previously existing area of employment law. There is a particular aspect of the employment relationship that, while open to contract, remains subject to constraints imposed by the law. A noncompete agreement permits an employee to contract with his employer to not work for a competitor following the termination of the employment relationship. This right to contract away the right to compete is, however, narrowly construed by the court system. A court may …

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An Empirical Study Of Employment Arbitration: Case Outcomes And Processes, Alexander Colvin Jun 2012

An Empirical Study Of Employment Arbitration: Case Outcomes And Processes, Alexander Colvin

Alexander Colvin

Using data from reports filed by the American Arbitration Association (AAA) pursuant to California Code requirements, this article examines outcomes of employment arbitration. The study analyzes 3,945 arbitration cases, of which 1,213 were decided by an award after a hearing, filed and reaching disposition between January 1, 2003 and December 31, 2007. This includes all the employment arbitration cases administered nationally by the AAA during this time period that derived from employer-promulgated arbitration procedures. Key findings include: (1) the employee win rate amongst the cases was 21.4%, which is lower than employee win rates reported in employment litigation trials; (2) …

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Doping Control, Mandatory Arbitration, And Process Dangers For Accused Athletes In International Sports , Maureen A. Weston Jun 2012

Doping Control, Mandatory Arbitration, And Process Dangers For Accused Athletes In International Sports , Maureen A. Weston

Maureen A Weston

Athletes in a professional sports league in the United States are members of players unions, which assist their athletes in obtaining representation when they are involved in dispute resolution proceedings associated with disciplinary actions. However, individual athletes who participate in international competitions do not enjoy the same benefits. When these athletes are required to submit to mandatory drug testing, with attendant potential criminal liability, and to mandatory arbitration, they should be provided meaningful access to competent legal representation when their athletic careers are in jeopardy. This article considers the legal framework, process, and recourse for athletes in international competition to …

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Rethinking Bargaining Unit Determination: Labor Law And The Structure Of Collective Representation In A Changing Workplace, Alexander Colvin May 2012

Rethinking Bargaining Unit Determination: Labor Law And The Structure Of Collective Representation In A Changing Workplace, Alexander Colvin

Alexander Colvin

[Excerpt] Arguably the leading issue for current labor law research is whether the existing system of law based on the Wagner Act model can continue to be relevant and appropriate for the contemporary workplace. Changes in the environment of work during the over half-century since this model was developed have brought pressures for re-evaluation and adaptation of key elements of its structure. Criticism of this system has focused on a number of areas, including: the reliance on the formal grievance procedure and arbitration; the separation of the realms of collective bargaining and business decision making; the limitations on employee participation …

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Arbitration Case Law Update 2012, Jill I. Gross Apr 2012

Arbitration Case Law Update 2012, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Parties to arbitration agreements sometimes invoke the judicial system to litigate collateral issues arising out of the arbitration process, such as arbitrability of some or all of the claims, arbitrator bias, and award enforcement or vacatur. When deciding these collateral issues arising out of securities arbitration, courts interpret and apply the Federal Arbitration Act (FAA). This chapter identifies recent decisions by the Supreme Court under the FAA, as well as selected lower court decisions that could have an impact on securities arbitration practice.

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Eliminating The Mandatory Trade-Off: Should Employees Have The Right To Choose Arbitration ?, Michael Peabody Apr 2012

Eliminating The Mandatory Trade-Off: Should Employees Have The Right To Choose Arbitration ?, Michael Peabody

Pepperdine Dispute Resolution Law Journal

As more employers include mandatory arbitration provisions in their employment contracts, policy-makers are becoming concerned that employees are being forced to trade their civil and statutory rights for their jobs. The California Legislature is considering legislation designed to combat this tendency and to provide legal protection for employees who might otherwise be forced to waive the right for redress of grievances, legal protections against discrimination, and other rights. Although the legislation was designed to protect the constitutional rights of employees, there are legal considerations and policy concerns that challenge the viability of this type of legislation. The primary question is …

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Judicial Policing Of Consumer Arbitration , Edward A. Dauer Apr 2012

Judicial Policing Of Consumer Arbitration , Edward A. Dauer

Pepperdine Dispute Resolution Law Journal

Adhesive consumer arbitration agreements pose questions that go beyond the problems of adhesion contracting generally. This essay describes why standard-form consumer arbitration requirements may be particularly troublesome. Despite its superficial neutrality, arbitration between individual consumers and business entities may be systematically more favorable to the business entities. The rules of arbitration law, however, inhibit effective judicial policing of the consequences of those inequalities. The federal sources of arbitration law further diminish the ability of state-based contract law to police the more subtle abuses. The result is a particularly difficult jurisprudential problem with a specially weakened legal solution. This essay offers, …

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Medical Malpractice Arbitration In The New Millennium: Much Ado About Nothing ?, Ann H. Nevers Apr 2012

Medical Malpractice Arbitration In The New Millennium: Much Ado About Nothing ?, Ann H. Nevers

Pepperdine Dispute Resolution Law Journal

This paper reviews the constitutional issues surrounding medical malpractice arbitration clauses and the implementation of arbitration contracts, and the existing medical malpractice process. Federal preemption issues under the Federal Arbitration Act, enterprise liability and ERISA preemption, and cybermalpractice will be discussed. Finally, dispute resolution industry standards implemented by the American Arbitration Association and American Health Lawyers Association will be reviewed as well as current medical malpractice mediation practices in industry. While the past has shown that arbitration has not been used a great deal future trends may increase use. Emerging medical malpractice arbitration issues arising in the new millennium include …

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Images Of Justice , Lela P. Love Apr 2012

Images Of Justice , Lela P. Love

Pepperdine Dispute Resolution Law Journal

This Essay crystallizes core elements of the major dispute resolution processes: litigation, arbitration and mediation. The purpose is both to clarify essential characteristics of and the role of the neutral in each process and to identify the relation of those characteristics and that role to a conception of "justice." The piece explores whether certain shifts in process characteristics or the neutral's role (for example, arbitration that is not voluntary or a mediator adopting an evaluative orientation) so fundamentally change the particular process as to compromise its relation to a compelling conception of fairness and justice.

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First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic Apr 2012

First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic

Pepperdine Dispute Resolution Law Journal

In 1995, the United States Supreme Court in First Options of Chicago, Incorporated v. Kaplan considered whether arbitral tribunals or courts should have the primary power to decide if parties agreed to arbitrate the merits of the dispute and whether the court of appeals should accept the district court's findings of fact and law or apply a de novo standard of review. The Court unanimously held that, unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitral tribunal. Furthermore, in such a case, …

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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 …

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Internet Dispute Resolution (Idr): Bringing Adr Into The 21st Century , Richard Michael Victorio Apr 2012

Internet Dispute Resolution (Idr): Bringing Adr Into The 21st Century , Richard Michael Victorio

Pepperdine Dispute Resolution Law Journal

It was only a matter of time before ADR hit the Interet. The Internet has sweepingly transformed society just as ADR has wrought tremendous change in our society, by enabling the swift and economical settlement of disputes, and unclogging the legal system in the process. The application of alternative dispute resolution methods to the Internet, termed "iDR" in this comment, has the potential to impact the landscape of both traditional ADR and the Internet itself. It brings the communication technology of the Internet to the practice of traditional, non-virtual, "real world" ADR, reducing costs and speeding up the exchange of …

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Charge Me, Pay Me, But Don't Even Think Of Litigating Me: The Dominance Of Arbitration In Truth-In-Lending Claims , M. Susan Hale Apr 2012

Charge Me, Pay Me, But Don't Even Think Of Litigating Me: The Dominance Of Arbitration In Truth-In-Lending Claims , M. Susan Hale

Pepperdine Dispute Resolution Law Journal

This article analyzes the impact of the courts' ever increasing priority to enforce arbitration agreements in Truth In Lending Act (TILA) claims and reform. Part I entails a general discussion of TILA's logistics; the goals, the means, and the remedies. Part II briefly traces the rise of arbitration as well as evaluating its various advantages and disadvantages. Part III reports on the current emphasis of enforcing arbitration agreements in federal courts by explaining the basis of enforcing the agreement. Part IV explores the impact of arbitrating TILA claims on the claim and on individuals. Part V provides an analysis of …

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Arbitration And Judicial Civil Justice: An American Historical Review And A Proposal For A Private/Arbitral And Public/Judicial Partnership , Roger S. Haydock, Jennifer D. Henderson Apr 2012

Arbitration And Judicial Civil Justice: An American Historical Review And A Proposal For A Private/Arbitral And Public/Judicial Partnership , Roger S. Haydock, Jennifer D. Henderson

Pepperdine Dispute Resolution Law Journal

Dispute resolution systems historically have included three primary forums: the judicial process, administrative procedures, and the arbitral system. This article focuses on the modem and rapidly expanding third system - that of arbitration. The goal of everyone interested in maintaining a fair, accessible, and affordable civil justice system is to monitor, shape, and maintain arbitration as a fair, accessible, and affordable system. The purpose of this article is to provide information and ideas which will help make that goal a success. The first part of this article explains the historical development of arbitration in this country prior to and under …

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