Law Commons^™

The History And The Current Development Of Commercial Arbitration In Kazakhstan, Venera Konussova

Venera Konussova

Kazakhstan has recently been taking steps to a new wave of modernization in order to enter 30 the most developed countries of the world. Such ambitious goal requires not only fast and effective development of all spheres of the economy but also significant improvement of legislation. Revision of legislation in the field of arbitration seeks a twofold goal; to create favorable conditions for the civil rights protection, and to improve the investment climate in particular. In order to obtain this goal, the Draft Law on Arbitration largely reconsidered existing legislation by incorporating progressive regulations, which help to overcome long lasting …

The 2012 Saudi Arbitration Law: A Comparative Examination Of The Law And Its Effect On Arbitration In Saudi Arabia, Faris K. Nesheiwat, Ali Khasawneh

Ferris K Nesheiwat

A major concern for any outside investor in the Middle East's largest economy is that arbitration in Saudi Arabia is notoriously complicated, time-consuming, and prone to interference by the local courts, while arbitral awards have often faced difficulties in being enforced. A new Saudi Arbitration Law was issued by Royal Decree No. M/34 on April 16th, 20124 (the “New Law”), which came into force on 9 July 2012. The New Law, which is covered in 58 Articles, is intended to alleviate many of the shortcomings of the Saudi Arbitration Law of 1983 (the “Old Law”) and strengthen investors' confidence in …

L'Avvocato-Arbitro Nell'art. 61 Del Nuovo Codice Deontologico Forense, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

Rescuing Arbitration In The Developing World: The Extraordinary Case Of Georgia, Steven Austermiller

Steven Austermiller

The country of Georgia has a long and interesting history with arbitration. From “telephone justice” to the criminal underworld to legitimacy, Georgian arbitration has survived many iterations. Now, as Georgia begins the EU accession process, it has a new arbitration law that incorporates international norms. This article analyzes the law, explores how arbitration has been implemented thus far, and discusses some of the challenges that remain. Drawing on his U.S. practice experience in arbitration and his work managing legal reform programs in Georgia and other countries, the author recommends some important changes to Georgia’s new arbitration regime. A particular area …

When Peace Is Not The Goal Of A Class Action Settlement, D. Theodore Rave

D. Theodore Rave

On the conventional account, a class action settlement is a vehicle through which the defendant buys peace from the class action lawyer. That single transaction will preclude future litigation by all class members. But peace, at least through preclusion, may not always be the goal. In a recent Fair Credit Reporting Action (FCRA) case, In re Trans Union Privacy Litigation, the parties agreed to a class action settlement that did not preclude individual claims. The 190 million class members surrendered only their rights to participate in a future class or aggregate action; they remained free to march right back into …

“Whimsy Little Contracts” With Unexpected Consequences: An Empirical Analysis Of Consumer Understanding Of Arbitration Agreements, Jeff Sovern

Jeff Sovern

Arbitration clauses have become ubiquitous in consumer contracts. These arbitration clauses require consumers to waive the constitutional right to a civil jury, access to court, and, increasingly, the procedural remedy of class representation. Because those rights cannot be divested without consent, the validity of arbitration agreements rests on the premise of consent. Consumers who do not want to arbitrate or waive their class rights can simply decline to purchase the products or services covered by an arbitration agreement. But the premise of consent is undermined if consumers do not understand the effect on their procedural rights of clicking a box …

Stiffing The Arbitrators: The Problem Of Nonpayment In Commercial Arbitration, Brian Farkas, Neal M. Eiseman

Brian Farkas

Commercial arbitration is a creature of contract; the parties are there because they choose to be, either including an arbitration clause in their written agreement or, after a dispute developed, electing to avoid litigation all together. Arbitration also comes with an up-front cost non-existent in litigation: the arbitrators. Taxpayers pay for their state and federal judges, but the parties themselves pay for their arbitrators. But what happens if one party refuses (or is otherwise unable) to pay the arbitrator? If the arbitrator then refuses to proceed, as is likely, should the dispute revert to court, in derogation of the prior …

A Gateway Question Of Arbitrability: The Ambiguity Of Article Ii Of The New York Convention On The Recognition And Enforcement Of Foreign Arbitral Awards Of 1958, John Ja Burke

John JA Burke

This article addresses, a well established but unsettled, gateway question of International Commercial Arbitration: who, national courts or arbitral tribunals, has primary competence to decide whether parties have entered into an internationally cognizable arbitration agreement. The flip side of this question implicates the doctrine of Kompetenz/Kompetenz. The uncertainty, for both issues, stems from the legal status accorded to Article (2)(3) of the New York Convention on the recognition and enforcement of foreign arbitral awards of 1958 [1958 NYC or Convention]. Article (2)(3) obliges Courts of a Contracting State to refer parties to arbitration provided two conditions precedent are met thereby …

Enforcing Global Law: International Arbitration And Informal Regulatory Instruments, Katia Fach Gómez

katia fach gómez

This paper starts from the assumption that international arbitration easily fits in with a pluralist conception of global law. Globalization has created new informal instruments of regulation, and arbitration is an efficient tool for enforcing them. First, the paper presents a brief analysis of the most noteworthy international initiatives in the area of transnational legal indicators. It will become clear how these indirect regulatory instruments are contributing to the creation of a new regulatory profile in the area of arbitration. Second, a number of examples will show that both commercial and investment arbitration are receptive to the multiple appearances of …

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

Valerio Cosimo Romano

No abstract provided.

At&T V. Concepcion: The Problem Of A False Majority, Lisa Tripp, Evan R. Hanson

Lisa Tripp

The Supreme Court’s 2011 decision in AT&T v. Concepcion is the first case where the Supreme Court explores the interplay between state law unconscionability doctrine and the vast preemptive power of the Federal Arbitration Act (FAA). Although it is considered by many to be a landmark decision which has the potential for greatly expanding the already impressive preemptive power of the FAA, something is amiss with Concepcion.

AT&T v. Concepcion is ostensibly a 5-4 majority decision with a concurring opinion. However, the differences in the majority and concurring opinions are so profound that it appears that Justice Thomas actually …

The Arbitration Clause As Super Contract, Richard Frankel

Richard Frankel

It is widely acknowledged that the purpose of the Federal Arbitration Act was to place arbitration clauses on equal footing with other contracts. Nonetheless, federal and state courts have turned arbitration clauses into “super contracts” by creating special interpretive rules for arbitration clauses that do not apply to other contracts. In doing so, they have relied extensively, and incorrectly, on the Supreme Court’s determination that the FAA embodies a federal policy favoring arbitration.

While many scholars have focused attention on the public policy rationales for and against arbitration, few have explored how arbitration clauses should be interpreted. This article fills …

Arbitral Autonomy, Liaquat Ali Khan

Ali Khan

This Article presents concrete proposals to amend the current arbitration law for minimizing court intervention into arbitration proceedings and enforcement of arbitral awards. As a method of dispute resolution, arbitration offers an alternative to litigation. Yet arbitration is frequently interspersed with litigation. As a true alternative, arbitration should be, and can be, autonomous, that is, litigation-free. Arbitral autonomy fails when parties go to court to challenge validity of the arbitration agreement, to obtain emergency relief, or to contest enforceability of the award, among other reasons. To accomplish litigation-free arbitration, first, the need to go to court must be minimized; second, …

The Alternative Forms Of Dispute Settlement And The Essential Difference Between These And Arbitration, Michael Diathesopoulos

Michael Diathesopoulos

The paper examines the characteristics of some common alternative forms of dispute settlement and their key differences from arbitration regarding their nature and scope. Its purpose is to explore each mechanism's suitability for specific types of disputes.

México, Su Constitución Y El Arbitraje Internacional: Un Desarrollo Bicentenario, James A. Graham

James A. Graham

En la Montaña Mágica de Mann, Settembrini defiende el arbitraje como el medio idóneo para resolver las disputas internacionales, enfatizando que hay un ius divinum (hoy diríamos una lex mercatoria) que transciende los derechos positivos y permite resolver las controversias más allá de los diversos derechos nacionales. A lo cual, le responde Naphta, que no es posible dejar a tribunales “bourgeois” decidir sobre lo justo como si fueron dioses, o como hubiera dicho Rigaux, “des dieux et des héros”. Tal antagonismo resume la historia del arbitraje en los dos últimos siglos en México. Considerado al inicio de su independencia, como …

Walking A Tightrope: The Role Of Equitable Discretion In Quantum Determination In Investment Treaty Law, Silke N. Kumpf

Silke Noa Kumpf

My thesis analyzes the manifestation of equitable arbitrator discretion in quantum determination and its role as a tool to balance treaty-based investor rights with extrinsic but competing international and public law obligations of States. I examine, first, scholarly opinions on the subject, second, arbitral practice through a content analysis of all past awards published by the International Centre for the Settlement of Investment Disputes (ICSID), which held liable respondent State for expropriation and, third, the results of an online survey I conducted with ICSID arbitrators, the lawyers that plead before them and the scholars that write about the topic in …

Factors To Consider Before Arbitrating In The Arab Middle East:, Radwa S. Elsaman Ms.

Radwa S Elsaman

This article discusses two significant factors affecting arbitration in the Arab Middle East: the effect of religion on arbitration and the effect of legislative constraints on arbitration. By presenting foreign investors and practitioners with an overview of some of the unique social, legal and religious issues distinctive to arbitration in the Arab Middle East, this article will provide foreign investors and practitioners with examples of factors to consider that can affect arbitration decisions in the Middle East.

Timing Settlement, Curtis E.A. Karnow

Curtis E.A. Karnow

A review of empirical and theoretical research pertaining to the effective timing of settlement conferences, and the factors affecting success at settlement.

Reconsidering Arbitration: Evaluating The Future Of The Manifest Disregard Doctrine, Griffin Toronjo Pivateau

Griffin Toronjo Pivateau

In a recent decision, the Supreme Court indicated that parties may now have fewer rights to appeal arbitration awards. In Hall Street v. Mattel, Inc., the Court found that parties to an arbitration agreement could not supplement, by contract, the statutory grounds for challenging an arbitration award. Unfortunately, the Court called into doubt a long line of cases holding that a party could seek to vacate an arbitration decision where the arbitrator exhibited a manifest disregard for the law. Until the Hall Street decision, the manifest disregard doctrine enjoyed widespread acceptance. Appellate courts from every circuit have used the manifest …

Manifest Disregard And The Imperfect Procedural Justice Of Arbitration, Thomas V. Burch

Thomas V. Burch

Arbitration is an efficient dispute-resolution system that respects parties’ right to an accurate award. But because arbitration is designed to be efficient, accuracy is not guaranteed. This presents a challenge when courts are asked to confirm or vacate arbitrators’ decisions. Judges dislike approving inaccurate awards, especially in cases where parties have unequal bargaining power. Yet, judges also recognize arbitration’s limited-review principle. So they are forced to balance their desire for accuracy against arbitration’s efficiency policy. Efficiency typically wins at the expense of accurate outcomes.

This Article contends that courts place too much emphasis on the efficiency policy in mandatory arbitration. …

Arbitration In Argentina, Felipe Eduardo Zabalza, Martín Torres Girotti

Felipe Eduardo Zabalza

The article is an analysis of arbitration law and procedures in Argentina, as well as recent decisions by the Courts.

Recent Private International Law Developments Before The Supreme Court Of Canada, Antonin I. Pribetic

Antonin I. Pribetic

A trilogy of interesting cases involving private international law recently wended their way to the Supreme Court of Canada: (1) King v. Drabinsky (an Ontario case addressing the applicability of the Charter in respect of the enforcement of a foreign judgment); (2) Teck Cominco Metals Ltd. v. Lloyd's Underwriters (a British Columbia case involving declaratory relief in the context of parallel proceedings and forum non conveniens); and (3) Yugraneft v. Rexx Management Corporation (an Alberta case which affirmed that the two-year limitation period under s.3 of Alberta's Limitations Act, governs when a party seeks the recognition and enforcement in Alberta …

Deconstructing Public Policy: International Arbitration Law And The Enforcement Of Foreign Awards In India, Aditya Swarup

Aditya Swarup

No abstract provided.

Arbitration In Argentina - The Judicial Court’S Review On The Arbitration Awards, Felipe Eduardo Zabalza, Leandro Javier Caputo

Felipe Eduardo Zabalza

The nullity recourse against an arbitration award is not aimed at challenging alleged errors in iudicandum, nor is it possible to use it to obtain elliptically a judicial revision of an adverse award, since that would imply the degeneration of arbitration, depriving it of one of its most precious benefits.

A decision in re Decathlon España S.A. vs. Bertone, Luis, handed down by the National Court of Appeals on Commercial Matters, Chamber D, stated that “the higher or lesser amount of said control depends on the same will which gave rise to arbitration: it will be of a maximum extension …

The Effect Of Forum Selection Clauses On A District Court's Power To Compel Arbitration, Thomas V. Burch

Thomas V. Burch

No abstract provided.

An Arbitrator's Authority To Award Attorney Fees For Bad-Faith Arbitration, Thomas V. Burch

Thomas V. Burch

No abstract provided.

Georgia General Assembly Adopts Manifest Disregard As A Ground For Vacating Arbitration Awards: How Will Courts Treat The New Standard?, Thomas V. Burch

Thomas V. Burch

No abstract provided.

Necessity Never Made A Good Bargain: When Consumer Arbitration Agreements Prohibit Class Relief, Thomas V. Burch

Thomas V. Burch

No abstract provided.

Adr, The Judiciary, & Justice: Coming To Terms With The Alternatives, Erin Ryan

Erin Ryan

[This student note is the closing chapter of the Harvard Law Review “Developments in the Law” issue for the year 2000, devoted to developments in civil litigation.] Any discussion of recent developments in civil litigation must address the virtual revolution that has taken place regarding alternative dispute resolution (ADR). Attorneys have witnessed a steady growth in their clients' recourse to ADR in place of lawsuits, and ADR is increasingly incorporated into the litigation process by the judiciary itself—in the form of court-annexed arbitration, mediation, summary jury trials, early neutral evaluation, and judicial settlement conferences. “Alternative” models of dispute resolution have …