Law Commons^™

Tainted Love: An Increasingly Odd Arbitral Infatuation In Derogation Of Sound And Consistent Jurisprudence, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

The Public Interest In International Arbitration, Jan Paulsson

Articles

No abstract provided.

Article Iii Judicial Power And The Federal Arbitration Act, Roger J. Perlstadt

UF Law Faculty Publications

Arbitrators determine facts and apply law to those facts to bindingly resolve disputes between two or more parties, a task normally reserved for judges. The Federal Arbitration Act (FAA) makes agreements to arbitrate disputes enforceable, including disputes that would normally be heard by an Article III judge, such as those arising under federal law or between parties of diverse citizenship. Accordingly, disputes subject to an arbitration agreement brought before a federal court for adjudication must instead, pursuant to the FAA, be resolved by an arbitrator. Yet, while Article III ostensibly mandates that life-tenured and salary-protected judges decide such disputes, arbitrators—selected …

Conflicts As Inner Trials: Transitions For Clients, Ideas For Lawyers, Jonathan R. Cohen

UF Law Faculty Publications

As times of transition, conflicts often produce significant inner trials for parties. This paper categorizes some of the more common inner trials parties in conflict face (e.g., coping with loss, strong emotions, uncertainty, etc.) and suggests that, as liminal times in people’s lives, some conflicts may also hold within them important opportunities for learning, growth and self-definition. This paper also offers some ideas for how lawyers might best assist clients during such transitions.

Unified National Legal Treatment Of International Commercial Arbitration: A Continuing Challenge, Horacio A Grigera Naon

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Document Production In International Arbitration: A Critique From 'Across The Pond', Peter Ashford

Loyola University Chicago International Law Review

No abstract provided.

Complex Dispute Resolution: Volume Iii: Introduction And Coda: International 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 …

Culpa In Contrahendo In European Private International Law: Another Look At Article 12 Of The Rome Ii Regulation, Najib Hage-Chahine

Northwestern Journal of International Law & Business

Precontractual liability is liability that arises out of a harmful conduct that occurs during the formation period of a contract. Where the harmful conduct occurs during international negotiations, a conflict of laws issue arises. The determination of the applicable law to precontractual liability can be a complex and tedious task, which is why the European Legislature has provided a special conflict-of-law rule in Article 12 of the Rome II Regulation on the applicable law to non-contractual obligations. Through this provision, the European Legislature aims to achieve uniformity between EU Member States, while providing an appropriate conflicts rule. The present essay …

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong

Journal of Dispute Resolution

In many ways, the relationship between litigation and international commercial arbitration is a curious one, with experts adopting diametrically opposed positions on how the two procedures do or should interact. For example, some people take the view that international commercial arbitration is a uniquely self-contained dispute resolution mechanism that proceeds entirely independent of state control.'

Court Intervention In International Arbitration: The Case For Compulsory Judicial Internationalism Symposium, Frederic Bachand

Journal of Dispute Resolution

Part I sets out in more detail the proposed interpretive rule. It does so by explaining why the relevant international normative context should always matter when courts are called upon to resolve questions of international arbitration law to which local sources provide no clear answers. In Part H, I address the issue of how precisely that context ought to bear upon the interpretive process. In doing so, I highlight some important distinctions regarding how that context should bear upon the courts' reasoning depending on whether the issue in dispute is governed by uniform law instruments-such as the New York Convention …

New York Convention And The American Federal System, The Symposium, Christopher R. Drahozal

Journal of Dispute Resolution

Whether state law can play a broader role in international arbitration matters in the United States depends on the extent to which the New York Convention and Chapter Two of the FAA (which implements the Convention) preempt state arbitration law. This article undertakes a preliminary analysis of that broad topic by examining several legal questions central to determining the preemptive effect of the New York Convention: (1) What effect, if any, does the federal-state clause (Article XI) have on U.S. obligations under the Convention? (2) To what extent does Chapter Two of the FAA apply in state court? and (3) …

Interference Of The Court Of The Seat With International Arbitration, The Symposium, Giulia Carbone

Journal of Dispute Resolution

This article looks upon two fundamental questions: (1) whether arbitrators should comply with a local court's order aimed at suspending or interrupting the running of arbitral proceedings, and (2) what type of remedies should a party receive when courts unjustly interfere with their right to arbitrate. This article will explore these two questions in four parts. Part II focuses on the interference with international commercial arbitration by the court at the place of the arbitration. It does so by taking into account ICC cases, some relevant national judgments, and deals with the solutions offered by Articles 8 and 16 of …

Concerning Preemption: Upholding Consent Under The Federal Arbitration Act Note, Shane Blank

Journal of Dispute Resolution

AT&T Mobility LLC v. Concepcion represents the latest failed effort by a state to assert some level of control over consensual arbitration agreements. It also represents an affirmation by the U.S. Supreme Court of a long-standing notion that arbitration agreements, standing on equal footing with other contracts, must be enforced according to their terms-holding consent to be the paramount consideration in judicial analysis. This note will examine the lengthy history of the FAA's preemptive power under the Supremacy Clause, explore the U.S. Supreme Court's time-honored rationale for choosing when to exercise its preemptive powers to invalidate state law, and evaluate …

Unconscionable Construction: How The Ninth Circuit Evades The Faa By Severing Arbitration Agreements As Unconscionable Note, Daniel B. Mitchell

Journal of Dispute Resolution

Bridge Fund Capital Corp. v. FastBucks Franchise Corp. illustrates a recent manifestation of an ongoing judicial hostility to arbitration. As the Supreme Court has developed its FAA jurisprudence to limit the severance of arbitration agreements, many lower courts have continued to develop legal justifications to circumvent these restrictions. The FAA's savings clause does afford some latitude for severance of arbitration agreements, but the Supreme Court has not yet defined the limits of the savings clause, nor whether the general contract defense and their justifications are sufficient to supersede FAA policy. Bridge Fund shows how the doctrine of unconscionability it being …

At&T Mobility And Faa Over-Preemption, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

The Supreme Court's recent arbitration law decisions reflect the Court's strong support for arbitration agreements, but also severely limit the states’ powers to police the fairness of arbitration. In particular, the Court’s decision in AT&T Mobility v. Concepcion, LLC expands the FAA preemption doctrine beyond its prior boundaries, signaling how far the Court is willing to go to support arbitration clauses at the expense of states’ rights and the values of federalism. This article explores the impact of AT&T Mobility on the preemption of state arbitration law, and the concomitant impact on the balance between state and federal power in …

Investor Protection Meets The Federal Arbitration Act, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

In the past three decades, most recently in AT&T Mobility LLC v. Concepcion, the United States Supreme Court has advanced an aggressive pro-arbitration campaign, transforming the Federal Arbitration Act (FAA) into a powerful source of anti-consumer substantive arbitration law. In the aftermath of AT&T Mobility, which upheld a prohibition on class actions in a consumer contract despite state law that refused to enforce such provisions on unconscionability grounds, efforts have been made to prohibit investors from bringing class actions or joining claims, including claims under the Securities Exchange Act of 1934 (the Exchange Act). In the most egregious example to …

Convergence And Divergence In International Dispute Resolution Symposium, Peter Rutledge

Journal of Dispute Resolution

This symposium submission draws heavily on law and economic literature to develop its thesis. Part I lays out the literature behind the parties' choice to opt for arbitration. It also builds upon that literature by attempting to sketch out some preliminary reasons why parties might opt for arbitration over another form of dispute resolution. Part II charts how, along various axes, arbitration has begun to converge with litigation - thereby depriving it of a comparative advantage that it once enjoyed - due to innovations in arbitration and innovations in the field of international civil litigation. In brief, the traditional advantages …

Introduction To The Court Of Arbitration For Sport (Cas) & The Role Of National Courts In International Sports Disputes, An Symposium, Louise Reilly

Journal of Dispute Resolution

The founding purpose of the Court of Arbitration for Sport (CAS) was to take international sports disputes out of national courts and provide a highly specialized forum where those disputes could be heard and decided, quickly and inexpensively, according to a flexible procedure. Since its inception, CAS has gained the recognition and trust of the international sports community and today, is the last instance of appeal for parties involved in a wide-range of sports-related disputes, including those related to all Olympic sports and many non-Olympic sports, football disputes, doping infractions and international commercial contracts. CAS has come to provide sportsmen …

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps Symposium, S. I. Strong

Journal of Dispute Resolution

Finally, the purpose of this Article is not to provide answers to particular questions, since far too much depends on the individual facts and circumstances of a particular dispute to allow for abstract generalizations. Instead, the goal is to identify a useful framework for analysis of matters relating to international commercial arbitration so that newcomers and infrequent participants in this area of law can approach their specific concerns with a higher degree of understanding and sophistication.

Two Steps Forward, One Step Back: Must The District Court Issue A Stay After A Decision Adverse To Arbitration Is Appealed, And To What Extent Are Arbitration Clauses Applied Retroactively Note, Benjamin Faber

Journal of Dispute Resolution

By creating new rules to fill in the gaps left by the FAA, the federal circuit courts may have muddied the waters of how and why parties assent to arbitration, and the ramifications of their decisions could change how and why parties bind themselves and each other to arbitration in the future. This note will address these issues in six remaining parts. Part II will briefly outline the pertinent facts of Levin." Part III addresses the circuit split on whether federal courts should issue an automatic stay of legislation pending an appeal to compel arbitration under § 16(a)(1)(A) of the …

New Use Of The Doctrine Of Unconscionability To Invalidate Arbitration Agreements In Consumer Contracts, The Note, Valerie Dixon

Journal of Dispute Resolution

Manfredi v. Blue Cross and Blue Shield suggests that this old judicial hostility is alive and well in Missouri jurisprudence. In an effort to level the playing field between parties of unequal bargaining power, Missouri courts have applied the unconscionability doctrine as a way to sidestep the United States Supreme Court's asserted policy favoring arbitration over litigation.7 This note considers the new approach of Missouri courts in invalidating arbitration agreements through the doctrine of unconscionability in the consumer context.

Unchecked: How Frazier V. Citifinancial Eliminated Judicially Created Grounds For Vacatur Under The Federal Arbitration Act, Sean C. Wagner

Oklahoma Law Review

No abstract provided.

Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman

Articles

The Supreme Court’s decision in AT&T Mobility v. Concepcion advanced an agenda found in neither the text nor the legislative history of the Federal Arbitration Act. Concepcion provoked a maelstrom of reactions not only from the press and the academy, but also from Congress, federal agencies and lower courts, as they struggled to interpret, apply, reverse, or cabin the Court’s blockbuster decision. These reactions raise a host of provocative questions about the relationships among the branches of government and between the Supreme Court and the lower courts. Among other questions, Concepcion and its aftermath force us to grapple with the …

Surrogate Decision-Making Standards For Guardians: Theory And Reality, Lawrence A. Frolik, Linda S. Whitton

Articles

This Article examines the theoretical and practical implications of the substituted judgment and best interest standards for decision making by guardians. After providing an overview of the current decision-making standards in guardianship statutes, the Article synthesizes theoretical debates about what these standards mean and whether they provide an effective paradigm for surrogate decision makers. The authors then use new survey data to offer conclusions about the degree to which the substituted judgment and best interest standards are understood and meaningfully applied by guardians.

Show Me The Money: Part One, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Until now, the discussion of how to ethically monetize “the value added” that settlement savvy attorneys bring to the client has been one of the few remaining taboos that is rarely, candidly discussed among lawyers. How should settlement-proficient lawyers calculate the value of efficient, quality outcomes? How does a lawyer who bills by the hour ethically deal with the inherent conflict of interest between his desire to make as much money as he can and the economic disincentive to be settlement proficient? What are some creative billing incentives to more closely align the clients’ desire for contained legal costs …

The Machinery Of Criminal Justice, Stephanos Bibas

All Faculty Scholarship

Two centuries ago, the American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased …

Sovereignty And The Promotion Of Peace In Non-International Armed Conflict, Anna Spain

Publications

No abstract provided.

The Mediation Export Explosion And The ‘Hidden’ Drive Towards Harmonisation, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the importance of harmonising the law and practice of mediation internationally is discussed.

The Role Of Equipoise In Family Law, Deborah Cantrell

Publications

Scholars reviewing family law over the last twenty years have described the field as having undergone a revolution. While true, both scholars and front-line family law advocates have failed to invent a satisfying end to the revolution. This Article takes up that challenge and offers a novel way forward, It identifies two translation challenges that have prevented the revolution from reaching its end. The first challenge is translating reform so that its benefits accrue equally across all kinds of participants--rich and poor, those with lawyers and those without. The second challenge is translating theory into on-the-ground practices useful to family …