Law Commons^™

Realizing Rationality: An Empirical Assessment Of International Commercial Mediation, S. I. Strong

Washington and Lee Law Review

For decades, parties, practitioners and policymakers have believed arbitration to be the best if not only realistic means of resolving cross-border business disputes. However, the hegemony of international commercial and investment arbitration is currently being challenged in light of rising concerns about increasing formalism in arbitration. As a result, the international community has sought to identify other ways of resolving these types of complex commercial matters, with mediation reflecting the most viable option. Numerous public and private entities have launched initiatives to encourage mediation in international commercial and investment disputes, and the United Nations Commission on International Trade Law (UNCITRAL) …

Uncitral And The Enforceability Of Imsas: The Debate Heats Up, Nadja Alexander, Anna Luisa Howard, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

This is a first of four in a series of blog posts on Kluwer Mediation Blog. They were published in conjunction with the the 65th session of the UNCITRAL Working Group II on arbitration and conciliation. The Working Group has turned its attention to the settlement of commercial disputes and in particular on the preparation of an instrument on the enforcement of international commercial settlement agreements resulting from conciliation. (Note that in UNCITRAL speak, the term ‘conciliation’ is used interchangeably with ‘mediation’. ) In terms of the type of instrument, the Working Group is considering the possibility of a convention, …

Uncitral And The Enforceability Of Imsas: The Debate Heats Up – Part 4, Anna Howard, Nadja Alexander, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

This is the last of four in a series of blog posts on Kluwer Mediation Blog. They were published in conjunction with the the 65th session of the UNCITRAL Working Group II on arbitration and conciliation. The Working Group has turned its attention to the settlement of commercial disputes and in particular on the preparation of an instrument on the enforcement of international commercial settlement agreements resulting from conciliation. (Note that in UNCITRAL speak, the term ‘conciliation’ is used interchangeably with ‘mediation’. ) In terms of the type of instrument, the Working Group is considering the possibility of a convention, …

Shaping The Agenda 1: Exploring The Competencies, Skills And Behaviours Of Effective Workplace Mediators, Brian M. Barry, Margaret Bouchier, Alec Coakley, Deirdre Curran, James Dillon, Cyril Joyce, Treasa Kenny, Oksana Kokaylo, Louisa Meehan, Genevieve Murray

Reports

This report outlines what is currently known about workplace mediation: its benefits, styles and strategies, its expected outcomes and training challenges. It also identifies an urgent requirement for Irish research in light of the increased promotion of mediation at state level in Ireland. It outlines some international experiences of the difficulties faced in balancing high quality accreditation and regulation with innovation and growth.

Shaping The Agenda 2: Implications For Workplace Mediation Training, Standards And Practice In Ireland, Brian M. Barry, Margaret Bouchier, Alec Coakley, Deirdre Curran Dr, James Dillon, Cyril Joyce, Treasa Kenny, Oksana Meehan, Louisa Meehan, Genevieve Murray

Reports

The Report and its sister report, Shaping the Agenda 1, give a fascinating insight into the world of workplace mediation in Ireland and abroad. It identifies key issues in relation to mediator skills, competencies and behaviours in this sector of mediation. Of enormous significance is the application of this research to the Irish context and specifically to the setting and maintenance of standards of training and practice in relation to workplace mediation. This work has put the MII, as the professional association for mediators in Ireland, in a position to build standards and policies on solid, detailed and considered research, …

The Three Phases Of The Supreme Court’S Arbitration Jurisprudence: Empowering The Already-Empowered, Martin H. Malin

Nevada Law Journal

No abstract provided.

When To Turn To Mediation In Telco Disputes, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

The Ministry of Communications and Information(MCI) proposed the introduction of an alternative dispute resolution schemeto assist telecos and consumers in resolving their disputes. The mediationprocess is likely to be used. In response to this suggestion, Straits Times’ Tech Editor MsIrene Tham questioned whether mediation goes far enough to settle telcodisputes. This op-ed discusses the basic principles involved in the mediation process, as well as when mediation is appropriate and conversely when it is not. Recommendations are made on how to decide on the appropriate mode of dispute resolution for a particular dispute.

Uncitral And The Enforceability Of Imsas: The Debate Heats Up – Part 2, Dorcas Quek Anderson, Nadja Alexander, Anna Howard

Research Collection Yong Pung How School Of Law

This is the second of four in a series of blog posts on Kluwer Mediation Blog. They were published in conjunction with the the 65th session of the UNCITRAL Working Group II on arbitration and conciliation. The Working Group has turned its attention to the settlement of commercial disputes and in particular on the preparation of an instrument on the enforcement of international commercial settlement agreements resulting from conciliation. (Note that in UNCITRAL speak, the term ‘conciliation’ is used interchangeably with ‘mediation’. ) In terms of the type of instrument, the Working Group is considering the possibility of a convention, …

Uncitral And The Enforceability Of Imsas: The Debate Heats Up – Part 3, Dorcas Quek Anderson, Nadja Alexander, Anna Howard

Research Collection Yong Pung How School Of Law

This is the third of four in a series of blog posts on Kluwer Mediation Blog. They were published in conjunction with the the 65th session of the UNCITRAL Working Group II on arbitration and conciliation. The Working Group has turned its attention to the settlement of commercial disputes and in particular on the preparation of an instrument on the enforcement of international commercial settlement agreements resulting from conciliation. (Note that in UNCITRAL speak, the term ‘conciliation’ is used interchangeably with ‘mediation’. ) In terms of the type of instrument, the Working Group is considering the possibility of a convention, …

Dispute Settlement Mechanisms Under The Asean Legal Framework, Anbar Jayadi

Indonesia Law Review

ASEAN has great ambitions. One (or two, even three and more) of them was laid out in ASEAN Economic Blueprint. It is to make ASEAN achieves higher levels of economic dynamism, sustained prosperity, inclusive growth and integrated development,1 visionary indeed. Nonetheless, it is necessary to always think and prepare if disputes happen. How to both face and to the extent, solve a dispute will determine whether ASEAN member states are committed to ASEAN and its ambitions as an intergovernmental organization.2 This book, as a matter of fact, do point out the necessity to examine existing dispute settlement mechanisms and discuss …

The Fate Of Armed Resistance Groups After Peace, David C. Williams

Indiana Journal of Constitutional Design

No abstract provided.

Internal Dispute Resolution: The Transformation Of Civil Rights In The Workplace, John M. Lande, Lauren B. Edelman, Howard S. Erlanger

Lauren Edelman

Many employers create internal procedures for the resolution of discrimination complaints. We examine internal complaint handlers' conceptions of civil rights law and the implications of those conceptions for their approach to dispute resolution. Drawing on interview data, we find that complaint handlers tend to subsume legal rights under managerial interests. They construct civil rights law as a diffuse standard of fairness, consistent with general norms of good management. Although they seek to resolve complaints to restore smooth employment relations, they tend to recast discrimination claims as typical managerial problems. While the assimilation of law into the management realm may extend …

Resolving Intrastate Conflicts Of Laws: The Example Of The Federal Arbitration Act, Andrew D. Bradt

Andrew D. Bradt

Choice-of-law analysis is typically thought of as confined to the multistate setting. This is a mistake. To the contrary, conflicts often appear between statutes of a single state. Unfortunately, courts do not see these cases as “choice-of-law” cases. They see them only as problems of statutory interpretation and ignore conflicts of laws instead of resolving them, either by construing the conflicting statutes independently or applying a canon of construction. Here, I examine the benefits of importing choice-of-law tools—particularly the tools of governmental-interest analysis—into the resolution of intrastate conflicts of laws. When two laws promulgated by the same sovereign clash, governmental-interest …

Nelson Mandela As Negotiator: What Can We Learn From Him?, Harold I. Abramson

Harold I. Abramson

This article considers how “the greatest negotiator of the twentieth century,” Nelson Mandela, approached negotiating the unbanning of the African National Congress (ANC), the dismantling of apartheid, and his own freedom after twenty-seven years of imprisonment. He employed classically good negotiation practices in the face of intense and violent opposition while confined in prison for life. If he could be successful, why cannot lawyers succeed when facing less daunting disputes?This article focuses on the period starting in 1985, when Mandela refused an offer to be released if he would condemn violence, until 1990, when President de Klerk gave his historic …

The Regulatory Robustness Rating In Practice: Part 3, Nadja Alexander, Sabine Walsh

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the regulatory robustness of cross-border mediation in Ireland is examined.

Michelin Ii Or The Regulatory Robustness Rating: Part 2, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the thinking, assumptions, and value judgments underpinning the 12 criteria of the Regulatory Robustness Rating for mediation jurisdictions System is explained.

Regulatory Robustness Rating (Rrr): A Michelin Guide To Mediation Regulatory Regimes, Nadja Alexander

Research Collection Yong Pung How School Of Law

Previously I posted some musings about a Mediation Friendly Star Rating System. Sort of like a Michelin Guide on the robustness of a jurisdictions regulatory framework in relation to mediation. In this post, I’d like to revisit the topic and take the idea a little further. Before I start, let me say thank you to many colleagues who commented on the earlier ideas especially Sabine Walsh, Martin Svatos, Geoff Sharp and Michael McIlwrath.

Big New Study On Necessary Lawyering Skills, John Lande

Faculty Blogs

This post summarizes the “Foundations of Practice” survey of lawyers which identifies “foundations” that lawyers need soon after graduation. These include communication, emotional and interpersonal intelligence, passion, ambition, professionalism, and other qualities and talents. Almost all of the items on the list refer to personal qualities that law schools don’t emphasize in their curricula. By contrast, law schools focus on things that only small proportions of the lawyers think are necessary soon after graduation.

Changing The Game: The Effects Of The 2012 Revision Of The Icc Arbitration Rules On The Icc Model Arbitration Clause For Trust Disputes, Colin Connor

Georgia Journal of International & Comparative Law

No abstract provided.

The United Nations Convention On The Recognition And Enforcement Of Foreign Arbitral Awards: The First Four Years, A. Jason Mirabito

Georgia Journal of International & Comparative Law

No abstract provided.

Equity In International Law: Its Growth And Development, S. K. Chattopadhyay

Georgia Journal of International & Comparative Law

No abstract provided.

Who Has Benefited Financially From Investment Treaty Arbitration? An Evaluation Of The Size And Wealth Of Claimants, Gus Van Harten

Gus Van Harten

We collected data on the size and wealth of the foreign investors that have brought claims and received compensation due to ISDS. Our main findings are that the beneficiaries of ISDS, in the aggregate, have overwhelmingly been companies with more than USD1 billion in annual revenue – especially extra-large companies with more than USD10 billion – and individuals with more than USD100 million in net wealth. ISDS has produced monetary benefits primarily for those companies or individuals at the expense of respondent states. Incidentally, we also found that extra-large companies’ success rates in ISDS, especially at the merits stage, exceeded …

Foreign Investor Protection And Climate Action: A New Price Tag For Urgent Policies, Gus Van Harten

Gus Van Harten

From a climate perspective, not all investment is equal. Desirable investment in clean energy needs encouragement and protection, while undesirable investment in fossil fuels needs clear policy signals to avoid further investment in destructive activities and stranding more assets. In this paper, evidence is presented on how foreign investor protection provisions in trade and investment agreements tilt the playing field in favor of entrenched incumbents and against urgent action on climate; on the potential for a massive expansion of investor-state litigation and risks to climate policy in proposed trade deals; and on key flaws in recent European Commission proposals to …

Foreign Nation Judgments - If State Law Provides For The Enforceability Of Foreign Judgments, The Judgment Is Enforceable Without Determination Of Whether The Arbitration Award On Which It Is Based Is Independently Enforceable Under The Convention On The Recognition And Enforcement Of Foreign Arbitral Awards, John W. Kindt

Georgia Journal of International & Comparative Law

No abstract provided.

Contracts - Arbitration Agreement - An Arbitration Agreement In An International Contract Is To Be Given Full Effect By Federal Courts Except Where Public Policy Or Equity Dictate Otherwise, James D. Dunham, J. S. Schuster

Georgia Journal of International & Comparative Law

No abstract provided.

Colloquium On Certain Legal Aspects Of Inter-American Cooperation: Establishment Of Mechanisms For The Settlement Of Economic Disputes; Views In The Americas On Basic Questions Relating To The Law Of The Sea, Gabriel M. Wilner, Michael A. Robison, Dr. Enrique E. Bledel, Dr. José J. Caicedo Perdomo, A. A. Fatuoros, Dale Furnish, David A. Gantz, Dr. F. V. García-Amador, Moorhead C. Kennedy, Dr. C. Luppinacci, Dr. Valerie T. Mccomie, Dr. Alfodo Molina Orantes, Francisco Orrego Vicuña, José Pagés, Seymour Rubin, Dean Rusk

Georgia Journal of International & Comparative Law

No abstract provided.

Arbitration Case Law Update 2016, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This chapter identifies decisions by the U.S. Supreme Court and selected federal and high state courts in the past year that interpret and apply the Federal Arbitration Act (FAA). This chapter also analyzes the impact some of these cases might have on securities arbitration practice.

Negotiation Symposium Virtual Book Club, John M. Lande

Faculty Blogs

As part of the Tower of Babel Symposium, speakers suggested publications providing useful insights about negotiation. The author conducted conversations with the speakers, which are collected in this post.

Transcanada Lawsuit Highlights Need To Scuttle Tpp, Jeffrey D. Sachs, Brooke Güven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

The Obama administration is still trying, against the odds, to push the Trans-Pacific Partnership trade and investment agreement (TPP) through the lame-duck session of Congress after the November presidential vote. The administration knows that TPP can’t pass before the election because both Hillary Clinton and Donald Trump oppose it; therefore, they are hoping for a stealth Senate vote between the election and inauguration of the new president in 2017.We can therefore “thank” TransCanada for reminding us why the TPP needs to be scuttled.

Taking Charge 2016: A Study Of The Strategic Budgeting Priorities Of The Residents Of Lincoln, Nebraska, Lisa M. Pytlikzillig, Addison Fairchild

Lisa PytlikZillig Publications

This report presents the results of the 2016 Taking Charge initiative sponsored by the City of Lincoln. This initiative included an online survey and a half-day, face-to-face, Community Conversation. Most previous Taking Charge activities have focused more narrowly on the immediate concerns of an impending budget proposal (e.g. which specific programs should be funded or discontinued to maintain a balanced budget). This year’s efforts also focused on specific items relevant to the City’s future budget policy priorities. As usual, residents were also given the opportunity to rate the City’s performance and City officials on a variety of performance characteristics.

A …