Law Commons^™

Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty

Benjamin C McCarty

The drafters of the 1958 New York Convention intended Article V(2)(b) to be interpreted narrowly, and while most pro-arbitration national courts do maintain narrowly defined areas of public policy that are sufficient for refusal of the recognition and enforcement of a foreign arbitral award, this is not always the case. Developing states and jurisdictions that maintain corrupt or inefficient judicial systems have shown a greater willingness to invoke the public policy exception for a broader, amorphous variety of reasons. This phenomenon has created a sense of unpredictability among international investors, arbitrators, and business executives as to the amount of deference …

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

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 Use Of The Proportionality Principle To Distinguish Compensatory Indirect Expropriation From Regulatory Measures, Anca T. Muir

Anca T Muir

The Investor State Dispute Settlement (ISDS) system has been criticized recently as a way for foreign corporations to counter a national government’s right to regulate. A subject of much of this scrutiny is the compensation requested by foreign investors when the host state needs to regulate for the public interest.

The issue of compensation for actions of indirect expropriation is a controversial issue, especially when the host state uses its police power to regulate in the public interest. When this occurs, it can create a conflict in which an investor claims that his investment was reduced to nothing by the …

Designing Emotional And Psychological Support Into Truth And Reconciliation Commissions, Verlyn F. Francis Ms.

Verlyn F. Francis Ms.

Truth and Reconciliation Commissions are a dispute resolution mechanism used to attempt to reunite countries and states after internal conflicts and civil wars. A large component of this transitional justice process involves truth-telling by perpetrators and victims. The ultimate goal is reconciliation of the parties within the unified state.

Using the example of the South African Truth and Reconciliation Commission, this paper argues that successful reconciliation depends on the design of the process. It is important for the designer to balance individual and institutional interests and to ensure that all stakeholders are at the design table. Since the truth-telling in …

The Quest For A New Generation Of Labor Chapter In The Ttip, Michele Faioli

Michele Faioli

The TTIP (Transatlantic Trade and Investment Partnership Agreement) may be key for the EU-US forthcoming vision of labor and industrial relations. More in general, it may be key for idea of a possible common Western labor legal system. The TTIP may be turned into a occasion to ground a new generation of labor chapters in investment/partnership treaties. In line with preliminary outputs, a practical proposal is introduced. This essay is also aimed at analyzing, under a critical legal approach, why, to what extent and how the TTIP labor chapter may be set up. By means of a de-constructive method in …

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 …

Curbing The Runaway Arbitrator In Commercial Arbitration: Making Exceeding The Powers Count, Sarah Cole

Sarah Cole

Arbitration is in crisis. Under fire as an oppressive, claim-suppressing method of dispute resolution, imposed by businesses upon unsuspecting employees and consumers, arbitration is also becoming increasingly unpopular with its original designers – businesses in commercial disputes with other businesses. While academic commentators spill considerable ink assessing the propriety of businesses imposing pre-dispute arbitration agreements on consumers and employees, to date they have paid scant attention to the reasons underlying business flight from arbitration as a preferred method for resolving disputes with other businesses. Empirical research sheds some light on this issue – surveys reveal that in-house counsel believe that …

Umbrella Clauses In The Icsid Arbitration, Ilyas Golcuklu

ILYAS GOLCUKLU

This article aims to discuss two main approaches, namely broad interpretation and restrictive interpretation, adopted by various arbitral tribunals to deal with umbrella clause claims brought in international investment disputes, especially under the ICSID[1] arbitration.

The first section of the article tries to give readers a general idea about the BITs and the definition of umbrella clauses by heavily emphasizing the importance of such clauses in international investment arbitration. This section also gives a brief historical background with regard to emergence of umbrella clauses and analyzes the rationale behind this emergence while giving some actual wording of such clauses …

Why Mediators Should Be Regulated, Art Hinshaw

Art Hinshaw

In the United States consumers engage mediators on a caveat emptor basis. The regulatory scheme for mediators is a patchwork of mediation referral organizations which allows unscrupulous mediators to exploit consumers with little to no recourse. One egregious example is that of Gary J. Karpin, a disbarred lawyer turned divorce mediator, who used the mediation process to con forty people into giving him approximately $250,000 before taking up residence in prison. In an age when everyone from doctors to cosmetologists is subject to occupational regulation, why are mediators virtually unregulated? Mediators have long been divided on the question of regulation. …

Reviewing Arbitration Awards For Competition Law Violations: A Playbook For Courts Implementing The New York Convention, William Schubert

William Schubert

This article discusses the risk that international arbitration awards violating national competition laws will be enforced without having received reasonable scrutiny either during arbitration or in the national courts.

The risk that competition law violations may be authorized under the guise of enforceable arbitration awards is real, and it is a major policy problem. It is quite easy, for example, to use the international arbitration framework to enforce agreements that authorize anticompetitive activity among competitors in jurisdictions unrelated to the arbitral award (i.e., without power to review it). The problem is that competition law violations in jurisdictions unrelated to the …

Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Julian Ku, Roger Alford, Bei Xiao

Julian Ku

This Article represents the most recent comprehensive effort to assess China’s record in the enforcement of arbitration awards issued outside of China. This Article fills two gaps in academic literature on China’s treatment of foreign arbitral awards. First, unlike studies that rely mainly on anecdotal evidence, this study reviews and analyzes the reasoning of leading Chinese judicial opinions interpreting and applying China’s obligations under the New York Convention. Second, unlike prior empirical studies of Chinese courts’ enforcement rates, this study also surveys global arbitration practitioners to find out information about their experiences enforcing foreign arbitral awards in China. The Article …

The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad

Zeina Jallad

The Power of the Body:

Analyzing the Logic of Law and Social Change in the Arab Spring

Abstract:

Under conditions of extreme social and political injustice - when human rights are under the most threat - rational arguments rooted in the language of human rights are often unlikely to spur reform or to ensure government adherence to citizens’ rights. When those entrusted with securing human dignity, rights, and freedoms fail to do so, and when other actors—such as human rights activists, international institutions, and social movements—fail to engage the levers of power to eliminate injustice, then oppressed and even quotidian …

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

Sports Scandals From The Top-Down: Comparative Analysis Of Management, Owner, And Athlete Discipline In The Nfl & Nba, Jaimie K. Mcfarlin, Joshua S.E. Lee

Jaimie K. McFarlin

This article serves to discuss the current landscape of professional sports discipline and commissioner power in the NFL & NBA, specifically understanding the discipline of management and ownership in the major leagues as compared to player discipline when franchise ownership interests and commissioner power conflict. Furthermore, these particular events illuminate the differences between discipline in professional sports and non-sports contexts.

Deliberative Engagement Within The World Trade Organization: A Functional Substitute For Authoritative Interpretations, Cosette D. Creamer, Zuzann Godzimirska

Cosette D Creamer

The transition from the General Agreement on Tariffs and Trade dispute settlement proceedings to the Dispute Settlement Mechanism (DSM) of the World Trade Organization represented a notable instance of judicialization within international economic governance, in that it significantly increased the independence of the DSM from direct government control. Since they began ruling on trade conflicts in 1995, the WTO’s adjudicative bodies have enjoyed a greater degree of interpretive autonomy than initially intended by states parties. This development largely stems from deadlock within the political organs of the Organization resulting in non-use of one of the primary means of legislative response—authoritative …

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

Valerio Sangiovanni

No abstract provided.

Fitting The Forum To The Pernicious Fuss: A Dispute System Design To Address Implicit Bias And 'Isms In The Workplace, Elayne E. Greenberg

Elayne E Greenberg

This proposal is a heretofore untaken first step in the dispute system design for implicit bias. It offers a different type of thinking about workplace discrimination caused by implicit bias and a different way to resolve it.

Until now, workplace discrimination caused by implicit biases has gone unabated, because the courts and EEOC mediation programs are better designed to address workplace discrimination caused by explicit biases. As the social science research clarifies, there are salient differences between workplace discrimination animated by implicit biases and workplace discrimination shaped by explicit biases discrimination. We now understand that we all have implicit biases, …

Regulating Mediators, Art Hinshaw

Art Hinshaw

Currently consumers engage mediators on a caveat emptor basis. The regulatory scheme for mediators is, at best, a disjointed patchwork of organizations that make mediation referrals which allows unscrupulous mediators to exploit consumers and hide in the system’s holes. One egregious example of abuse comes from Gary J. Karpin, a disbarred lawyer turned divorce mediator, who is believed to have used the mediation process to con hundreds of people into giving him an estimated $1 million before taking up residence in prison. His con was so successful in part because there was no natural place for his victims to turn …

Crowdsourcing (Bankruptcy) Fee Control, Matthew Bruckner

Matthew Adam Bruckner

In this article, I explore how crowdsourcing can help reduce the cost of professional representation in corporate bankruptcy cases. The cost of professional representation in bankruptcy cases is currently a hot topic, with oral argument haven taken place before the U.S. Supreme Court in Baker Botts L.L.P. v. Asarco, L.L.C. in February 2015, which case addressed various issues raised in my article. In brief, the fees of lawyers, investment bankers, and other bankruptcy professionals has been spiraling out of control because chapter 11’s existing fee control system is broken. That system can neither identify nor control professional overcharging, which empirical …

The Implications Of The Icsid Convention, The Resurrection Of The ‘International Minimum Standard’ And The Theory Of Internationalization Of State Contracts In Investment Treaty Arbitration., Felix O. Okpe

Felix O. Okpe

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 …

Holding Standards For Randsome: A Remedial Perspective On Rand Licensing Commitments, Layne S. Keele

Layne S. Keele

In Apple, Inc. v. Motorola, Inc., 757 F.3d 1286 (Fed. Cir. 2014), the four federal judges who considered the case—Judge Posner by designation at the trial level, and three Federal Circuit judges on appeal—all expressed differing opinions on the question of whether and to what extent extraordinary patent remedies should be available for the infringement of standard-essential patents. This article aims to simplify this muddled and confusing topic.

The article employs a teleological approach, examining the purposes behind remedies in general, the purposes of extraordinary remedies in patent law, and the purposes of RAND commitments (commitments to license standard-essential …

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 …

Take It Or Leave It: Unconscionability Of Mandatory Pre-Dispute Arbitration Agreements In The Securities Industry, William Alan Nelson Ii

William Alan Nelson II

The pervasive use of mandatory pre-dispute arbitration agreements in the securities industry is a relatively new phenomenon. However, research reflects that an overwhelming majority of retail brokerage and investment advisory agreements include language requiring that all disputes between the customer and the broker-dealer / investment adviser be resolved through arbitration – most often with Financial Industry Regulatory Authority (FINRA) Dispute Resolution. Thus, only in rare instances can an investor open either a brokerage or investment advisory account without agreeing to submit to mandatory pre-dispute arbitration.

The enclosed article is the first to focus on the fairness of mandatory pre-dispute arbitration …

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 …

Arbitraje De Construcción: Aspectos Principales De Las Distintas Modalidades De Contratos De Construcción, Eric Franco Regjo

Eric Franco

No abstract provided.

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 …