Law Commons^™

Swords Into Plowshares: A Pilgrimage For The Css Alabama, William W. Park

Faculty Scholarship

During the American Civil War, Britain sold ships to the Southern Confederacy in breach of neutrality obligations, triggering a dispute with the United States carrying threats of armed conflict. Some American politicians saw the dispute as an opportunity to annex Canada, then a weak assemblage of British colonies. Ultimately, arbitration in Geneva averted war, opening an era of long Anglo-American cooperation. The historical consequence of this landmark 1872 arbitration remains difficult to overstate. In addition to its diplomatic importance, the case introduced significant procedural precedents for international arbitration, including dissenting options, reasoned awards, party-appointed arbitrators, collegial deliberations, and arbitrators’ declarations …

Federal Rules Of Platform Procedure, Rory Van Loo

Faculty Scholarship

Tech platforms serve as private courthouses for disputes about speech, lodging, commerce, elections, and reputation. After receiving allegations of defamatory content in top search results, Google must decide between protecting one person's public image and another's profits or speech. Amazon adjudicates disputes between consumers and third-party merchants about defective or counterfeit items. For many small businesses, layoffs and bankruptcy hang in the balance. This Article begins to uncover the processes that these platforms use to resolve disputes and proposes reforms. Other important businesses that intermediate, such as credit card companies ruling on a disputed charge between a merchant and consumer, …

The Transient And The Permanent In Arbitration, William W. Park

Faculty Scholarship

Several years ago, Jan Paulsson observed that Derek Roebuck might substitute for a time machine, providing a way for us to voyage backward with a guide to put everything in context. Indeed, the great Derek Roebuck, to whom we dedicate this set of essays, gave much of his professional life to making sure that by receiving a glimpse of dispute resolution in earlier times, we might have an opportunity better to understand the reality of present-day arbitration.

Don’T Bring An Army To An Arbitration (England, 1411), David J. Seipp

Faculty Scholarship

The name of our friend Derek Roebuck will always be linked to the long history of arbitration and mediation which he has chronicled so thoroughly in a dozen volumes by my count and many articles and chapters. On a spectrum of dispute resolution methods from formal courtroom litigation to savage brute force, arbitration stands at an interesting intermediate point. In tribute to Derek’s memory, I offer this glimpse of a curious episode at the intersection of due process of law, armed violence and principled arbitration. It reminds us that these three alternatives were not always as widely differentiated as we …

Third Party Funding Of Investment Arbitration, Maya Steinitz

Faculty Scholarship

This Essay discusses Third-Party Funding in Investment Arbitration. It describes the rise of third-party funding of investment arbitration; the debate over the definition of litigation/arbitration finance; the forms arbitration finance takes; the normative debate in favor and against third-party funding of investment arbitration; the effects of arbitration funding on the arbitral process; developments in national, international, and soft law governing investment arbitration funding; and the likely effects of third-party funding on the international bar.

Tax And Arbitration, William W. Park

Faculty Scholarship

When fiscal measures intertwine arbitration, undue mystification sometimes follows. To enhance analytic clarity, tax-related arbitration might be divided into three parts. The first derives from ordinary commercial disputes that become laced with incidental tax questions. A corporate acquisition, for example, might carry tax consequences which in turn implicate contract claims or defences presented to an arbitral tribunal for resolution. The second genre of tax-related arbitration arises in respect of cross-border investment disputes. Rightly or wrongly, foreign investors often perceive host-country fiscal enactments as discriminatory, unfair, or tantamount to expropriation, thus violating international commitments. Finally, arbitration comes into play under income …

Johnny Veeder Qc 1948–2020, William W. Park

Faculty Scholarship

Thirty-six years ago, with a handful of arbitration aficionados, Johnny Veeder founded Arbitration International, later providing yeoman service as the journal’s second General Editor. He pushed the journal to aim at delivery of high-quality scholarship in the English language, on a broad spectrum of topics related to resolution of cross-border disputes, both public and private.

Unity And Diversity In International Law, William W. Park

Faculty Scholarship

The primordial Greek sea-god Proteus could alter his shape at will, notwithstanding that his divine substance remained the same. Reinventing himself by adapting to new circumstances, Proteus still stayed unchanged in essence.

Unlike the sea-god’s protean nature, the substance of international law may well undergo alterations when examined through the telescope of legal culture, or with predispositions of divergent educational backgrounds. For the thoughtful reader, scholarly speculation on such variations will be triggered by reading Is International Law International?. In that book, Professor Anthea Roberts explores a variety of elements in the teaching and practice of international law, viewed …

Retour Sur L’Affaire De L’Alabama: De L’Utilité Et De L’Histoire Pour L'Arbitrage International, William W. Park, Bruno De Fumichon

Faculty Scholarship

For any aficionado of international law and international arbitration, the 1872 Alabama case represents a rich historical landmark, as promising a mine as the wreck of the Confederate Ship Alabama itself, sunk off Cherbourg, in 1864, by the United States Ship Kearsarge. This arbitration represents a turning point in relations between the United States and Great Britain, from repeated conflict to a “Special Relationship” that has grown stronger during the past century and a half. The case also marked the revival of international arbitration, after centuries of uncertainty. Not least, the case introduced long-lasting procedural innovations: the neutral collegial tribunal, …

A Conversation With Professor William W. (Rusty) Park, William W. Park

Faculty Scholarship

ABBY COHEN SMUTNY*: The ITA’s Academic Council has an interesting and very useful project, which is called Preserving Perspectives. It is a project to interview leading arbitrators regarding the development and evolution of international arbitration. This has led to a series of wonderful videos that are posted on ITA’s website. These videos are a tremendously rich resource and I encourage you to check them out on ITA’s website.

I’m now delighted to introduce to you the next interview in this important series. Professor and member of our academic council Catherine Rogers will be interviewing Professor Rusty Park, and …

Soft Law And Transnational Standards In Arbitration: The Challenge Of Res Judicata, William W. Park

Faculty Scholarship

In international proceedings, a transnational “soft law” often finds expression in rules, guidelines and canons of professional associations which serve to supplement the “hard law” of national statutes and court decisions. Memorializing the experience of those who sit as arbitrators or serve as counsel, such standards contain a degree of circularity, in that relevant norms both derive from and apply to cross-border arbitration. Neither the nature nor the limits of “soft law” always present themselves with clarity. Often the litigants’ agreement fails to provide standards on controverted questions whose answers fall beyond common practice. In such instances, the integrity of …

Arbitration And Fine Dining: Two Faces Of Efficiency, William W. Park

Faculty Scholarship

A restaurant meal might turn into disappointment either when good food arrives late, or when prompt service delivers bad food. The chef cannot become preoccupied with any one aspect of fine dining to the exclusion of others. Likewise, arbitral proceedings implicate proportionality and balance among a multitude of factors which can make the experience good or bad. Several elements play key roles in evaluating any arbitration, namely: accuracy, fairness, cost, speed, and award enforceability. An inevitable tension exists among these goals. Decisions reached quickly and cheaply will do few favors if the award gets it wrong on the substantive merits. …

Equality Of Arms In Arbitration: Cost And Benefits, William W. Park

Faculty Scholarship

Depending on context and content, a regulatory framework can either help or hinder efforts to enhance aggregate social and economic welfare. Lively debate has arisen with respect to the net effects of two recent sets of directives for lawyer comportment in cross-border arbitration, the first being Guidelines adopted by the International Bar Association, the second contained in new arbitration rules promulgated by the London Court of International Arbitration. Each instrument aims to promote a more level playing field on matters where legal cultures differ, such as document production and counsel independence. Each has caused thoughtful commentators to question the need …

Michael Mustill: A Reminiscence, William W. Park

Faculty Scholarship

The arbitration world lost a giant when Michael Mustill departed in April of this year, just a few days short of his 84th birthday. A man of enormous intellect and wit, with a fine capacity for sincere friendship, this generous Yorkshireman enriched us through contributions as counsel, judge, scholar, and mentor.

Lord Mustill And The Channel Tunnel Case, William W. Park

Faculty Scholarship

Over two decades ago, in the now legendary Channel Tunnel Case, the British House of Lords (as it then was) was asked to provide judicial support for the efficient completion of a monumental construction project. The decision in that matter, penned by the late Lord Mustill, illustrates the delicate interplay between the dynamics of otherwise applicable law and the bespoke arbitration framework chosen by sophisticated parties to govern their dispute.

The Health Of International Arbitration: Counterpoise And Common Sense, William W. Park

Shorter Faculty Works

No abstract provided.

The Cohasset Marshlands Dispute: International Arbitration In Colonial New England, William W. Park

Faculty Scholarship

One of the earliest international arbitrations in the Americas arose from rival claims to hayfields contested between two groups of religious dissidents. The dispute resolution process which unfolded in 1640 between the Massachusetts and Plymouth colonies takes special significance as an epochal step toward the robust cross-border cooperation that ultimately united thirteen disparate colonies into a single nation.

The Predictability Paradox: Arbitrators And Applicable Law, William W. Park

Faculty Scholarship

In resolution of international contract disputes, arbitrators may sometimes show greater fidelity than courts to the parties’ intentions and established rule of a chosen law, foregoing any policy-making function similar to that sometimes asserted by common law judges. In adjusting international contracts, arbitrators face special tensions in their search for counterpoise between rival notions of predictability, often expressed in imprecise terms like “commercial reality” or “strict letter of the law” which like the humble chameleon take different colors depending on the backdrop.

A Fair Fight: Professional Guidelines In International Arbitration, William W. Park

Faculty Scholarship

Depending on context and content, a regulatory framework can either help or hinder efforts to enhance aggregate social and economic welfare. Lively debate has arisen with respect to the net effects of two recent sets of directives for lawyer comportment in cross-border arbitration: the guidelines adopted by the International Bar Association and the new arbitration rules promulgated by the London Court of International Arbitration. Each instrument aims to promote a more level playing field on matters where legal cultures differ, such as document production and counsel independence. Each has caused thoughtful commentators to question the need and the merits of …

Arbitration's Discontents: Between The Pernicious And The Precarious, William W. Park

Faculty Scholarship

Arbitration has become a victim of its own success, as its wider use has triggered a flood of doubt, disapproval and denunciation. In consequence, higher visibility for arbitral proceedings and awards has led to increased criticism, both just and unjust, with respect to arbitrator independence and impartiality. A robust dispute resolution process requires balance between fairness and efficiency, keeping arbitrators free from taint while at the same time reducing the prospect of dilatory tactics aimed at sabotaging proceedings. If litigants hope to have their disputes resolved by intelligent and experienced individuals, criteria for arbitrator impartiality and independence will need to …

Private Regulation Of Consumer Arbitration, Christopher R. Drahozal, Samantha Zyontz

Faculty Scholarship

Arbitration providers, such as the American Arbitration Association ("AAA') and JAMS, have promulgated due process protocols to regulate the fairness of consumer and employment arbitration agreements. A common criticism of these due process protocols, however, has been that they lack an enforcement mechanism. While arbitration providers state that they enforce the protocols by refusing to administer cases in which the arbitration agreement materially fails to comply with the relevant protocol, the private nature of arbitral dispute resolution makes it difficult to verify whether providers in fact refuse to administer such cases.

This Article reports the results of the first empirical …

The Politics Of Class Action Arbitration: Jurisdictional Legitimacy And Vindication Of Contract Rights, William W. Park

Faculty Scholarship

Exactly one year apart, the U.S. Supreme Court decided two cases on “class arbitration” proceedings, one about international shipping and the other on consumer purchases of mobile telephones. Each decision inflicted damage on a claimant’s right to invoke collective action in arbitrations. Read together, the opinions serve as a prism through which to refract key elements in an increasingly politicized debate on the legal framework for arbitration, particularly within the United States.

La Jurisprudence Américaine En Matière De “Class Arbitration”: Entre Débat Politique Et Technique Juridique, William W. Park

Faculty Scholarship

Arbitration law implicates a delicate equilibrium between respect for the bargain to arbitrate and protection of basic procedural fairness. The role of law thus remains intimately linked to the rule of law, in the sense of an impartial tribunal, the right to be heard, and respect for the arbitrator's mission. The legitimacy of the process depends on how arbitrators balance the often competing goals of due process and efficiency, and whether the authorities that review awards can monitor procedural integrity without infringing an arbitrator's prerogatives on a dispute's substantive merits. Two U.S. Supreme Court decisions on class arbitration serve as …

Rectitude In International Arbitration, William W. Park

Faculty Scholarship

Few criteria for evaluating arbitrator independence and impartiality will stay foolproof for long, given how ingenious fools often prove themselves to be. No less than in other areas of the law, elaboration of ethical standards for arbitrators implicates a tension between the transient and the permanent. Conflict-of-interest principles remain most useful if implemented with sensitivity to new trouble spots. Traditional ethical models serve as starting points for evaluating the fitness of those to whom business managers and nations entrust their treasure and their welfare. The constant evolution in expectations by users of the arbitral system call for regular adjustment in …

Creditor Claims In Arbitration And In Court, Samantha Zyontz, Christopher R. Drahozal

Faculty Scholarship

This article is based on the Interim Report, Creditor Claims in Arbitration and in Court, issued in November 2009 by the Searle Civil Justice Institute's Consumer Arbitration Task Force. It seeks to compare the outcomes of debt collection arbitrations to the outcomes of debt collection cases in court to help in evaluating arbitration as a means of resolving consumer disputes. The arbitration cases examined are debt collection cases administered by the American Arbitration Association (AAA) as part of its consumer arbitration docket, supplemented by cases brought by a single debt buyer as part of a consumer debt collection program administered …

Les Devoirs De L'Arbitre: Ni Un Pour Tous, Ni Tous Pour Un, William W. Park

Faculty Scholarship

Fans of the Alexandre Dumas novel Three Musketeers will remember that the adventure includes a fourth young man, d'Artagnan, who hopes to become one of the King’s guards, along with his friends Athos, Porthos, and Aramis, living by the motto “All for one, one for all”. Likewise, an arbitrator’s generally include four key obligation: accuracy, fairness, and efficiency, as well as vigilance in promoting an enforceable award. Prevailing litigants normally hope that the arbitral process will lead to something more than a piece of paper. To this end, they expect arbitrators to avoid giving reasons for annulment or non-recognition to …

Stipulating The Law, Gary S. Lawson

Faculty Scholarship

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court decided important questions of structural constitutionalism on the assumption, shared by all of the parties, that members of the Securities and Exchange Commission are not removable at will by the President. Four Justices strongly challenged the majority’s willingness to accept what amounts to a stipulation by the parties on a controlling issue of law. As a general matter, the American legal system does not allow parties to stipulate to legal conclusions, though it welcomes and encourages stipulations to matters of fact. I argue that one ought to …

An Empirical Study Of Aaa Consumer Arbitrations, Samantha Zyontz, Christopher R. Drahozal

Faculty Scholarship

This article extends our knowledge of consumer arbitration by presenting results from the first detailed empirical study of consumer arbitration as administered by the AAA. Primarily using a sample of 301 AAA consumer arbitrations that resulted in an award between April and December 2007, it considers such issues as the costs incurred by consumers in arbitration, the speed of the arbitral process, and the outcomes of the cases-the very topics of most interest in the policy debate.

The Arbitrator's Jurisdiction To Determine Jurisdiction, William W. Park

Faculty Scholarship

The disorienting effect of language finds illustration in the principle that arbitrators may rule on their own authority. Often expressed as Kompetenz-Kompetenz (literally “jurisdiction on jurisdiction”), the precept has been applied to questions such as who must arbitrate, what must be arbitrated, and which powers arbitrators may exercise. This much-vexed principle possesses a chameleon-like quality that changes color according to the national and institutional background of its application. Moreover, the basic rule that arbitrators may decide on their own jurisdiction says nothing about who (judge or arbitrator) ultimately decides a particular case. Rather, the rule states only that the question …

The Procedural Soft Law Of International Arbitration, William W. Park

Faculty Scholarship

The conference organizers set me the daunting task of exploring arbitration's “non-national instruments,” which is to say the guidelines of professional groups and non-governmental organizations related to evidence, conflicts of interest, ethics and the organization of arbitral proceedings. Frequently these procedural standards build on the lore of international dispute resolution as memorialized in articles, treatises and learned symposium papers. These guidelines represent what might be called “soft law,” in distinction to the harder norms imposed by arbitration statutes and treaties, as well as the procedural framework adopted by the parties through choice of pre-established arbitration rules.

The growth of procedural …