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Dispute Resolution and Arbitration

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Swords Into Plowshares: A Pilgrimage For The Css Alabama, William Park Jun 2021

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


Switching Hats In Med-Arb: The Ethical Choices Required To Protect Process Integrity, Nancy A. Welsh Jun 2021

Switching Hats In Med-Arb: The Ethical Choices Required To Protect Process Integrity, Nancy A. Welsh

Faculty Scholarship

This book takes a practical, concise, and coherent approach to mediation ethics to make lawyer-mediators aware of their ethical obligations while serving as mediators. The book has been written by 15 leading mediation scholars, with special expertise in mediation ethics, each contributing a chapter on a topic within his or her expertise.


But Is It Good: The Need To Measure, Assess, And Report On Court-Connected Adr, Nancy A. Welsh May 2021

But Is It Good: The Need To Measure, Assess, And Report On Court-Connected Adr, Nancy A. Welsh

Faculty Scholarship

We know that very few civil matters reach disposition through trial—but what do we really know about how civil cases do reach disposition? What number of civil cases reach disposition through settlement? What number of civil cases reach settlement through court-connected “alternative” dispute resolution (ADR)? Do we know enough about the results of courtconnected ADR to be able to detect potential patterns of systemic discrimination? This Article examines what we know from federal and state court systems’ public reporting and finds: 1) only a minority of federal district courts and state court systems report regarding dispositions through settlement; 2 ...


Bargaining In The Shadow Of Investor-State Mediation: How The Threat Of Mediation Will Improve Parties' Conflict Management, Andrea Kupfer Schneider, Nancy A. Welsh Apr 2021

Bargaining In The Shadow Of Investor-State Mediation: How The Threat Of Mediation Will Improve Parties' Conflict Management, Andrea Kupfer Schneider, Nancy A. Welsh

Faculty Scholarship

Issues of access to justice, threats to national sovereignty, and perceptions of inconsistency and arbitrariness have led to a crisis of confidence in the investor-state arbitration system. In response, there has been a successful push for the inclusion of mediation in treaty provisions and arbitration rules, as well as ratification of the Singapore Convention for the expedited enforcement of mediated agreements. Nonetheless, very little mediation is actually occurring on the ground. Efforts to increase the use of mediation have failed to address concerns such as the political costs of settling cases, the lack of coordination between state agencies with different ...


Introduction To Symposium On "Adr's Place In Navigating A Polarized Era", Nancy A. Welsh Feb 2021

Introduction To Symposium On "Adr's Place In Navigating A Polarized Era", Nancy A. Welsh

Faculty Scholarship

Ours is a nation built for conflict, for friction. Such conflict, while painful, can be good. It can signal newfound agency, and it can be a catalyst for dialogue, customized and creative solutions, and ultimately progress. This is what many dispute resolution academics teach their students. But we are caught in such an extraordinarily polarized time, and many wonder what role ADR can and should play in navigating a polarized era. That was the question addressed by Texas A&M School of Law's March 2020 symposium, with the resulting articles - by Baruch Bush & Peter Miller, Jonathan Cohen, Jill DeTemple ...


The Transient And The Permanent In Arbitration, William Park Jan 2021

The Transient And The Permanent In Arbitration, William 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.


Mediation: Embedded Assumptions Of Whiteness?, Sharon Press, Ellen E. Deason Jan 2021

Mediation: Embedded Assumptions Of Whiteness?, Sharon Press, Ellen E. Deason

Faculty Scholarship

This article attempts to uncover some of the systemic ways in which white supremacy is expressed in the practice of mediation in the United States with the goal of inspiring additional conversations and deeper attention to these issues by scholars and practitioners in the field of dispute resolution. Our methodology is to apply the themes in Layla F. Saad’s book, Me and White Supremacy: Combat Racism, Change the World, and Become a Good Ancestor (2020). We use the lenses of tone policing, color-blindness, racial stereotyping, anti-blackness, white silence, and white supremacy to reflect on the following aspects of mediation ...


Designing A State Court Small Claims Odr System: Hitting A Moving Target In New York During A Pandemic, David Allen Larson Jan 2021

Designing A State Court Small Claims Odr System: Hitting A Moving Target In New York During A Pandemic, David Allen Larson

Faculty Scholarship

When I began helping the New York State Unified Court System design a pilot online dispute resolution (“ODR”) system back in October 2016, I never imagined more than four years would pass before a system was implemented. One reason our journey was so long is because our target kept moving. After completing a detailed credit card debt collection ODR platform, we had to change direction before implementation and focus instead on small claims cases. Then like the rest of the world, we suddenly had to deal with the COVID-19 pandemic. Although it took longer than anticipated, we achieved our goal ...


Don’T Bring An Army To An Arbitration (England, 1411), David J. Seipp Jan 2021

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 ...


Doctrinal Conflict In Foreign Investment Regulation In India: ​​Ntt Docomo Vs. Tata Sons And The Case For “Downside Protection”, M. P. Ram Mohan, Nobuhisa Ishizuka, Sidharth Sharma Jan 2021

Doctrinal Conflict In Foreign Investment Regulation In India: ​​Ntt Docomo Vs. Tata Sons And The Case For “Downside Protection”, M. P. Ram Mohan, Nobuhisa Ishizuka, Sidharth Sharma

Faculty Scholarship

The strategic importance of India as an investment destination for foreign investors is highlighted by ongoing tensions in the Indo-Pacific region, and the recognition that a strong economic relationship with India is in the interest of countries seeking a more stable balance of power in the region. From a policy perspective, India has struggled to balance its own economic interests with the commercial requirements of investors. Rules attempting to strike this balance have created uncertainties that have resulted in investors seeking greater protections, which in turn have triggered additional regulatory responses. The prevalent use of put options by foreign investors ...


Domain-Specific Plurilateral Cooperation As An Alternative To Trade Agreements, Bernard M. Hoekman, Charles F. Sabel Jan 2021

Domain-Specific Plurilateral Cooperation As An Alternative To Trade Agreements, Bernard M. Hoekman, Charles F. Sabel

Faculty Scholarship

At the end of 2017 different groups of WTO members decided to launch talks on four subjects, setting aside the WTO consensus working practice. This paper argues that these ‘joint statement initiatives’ (JSIs) should seek to establish open plurilateral agreements (OPAs) even in instances where the outcome can be incorporated into existing schedules of commitments of participating WTO members. Designing agreements as OPAs provides an institutional framework for collaboration among the responsible national authorities, transparency, mutual review, and learning, as well as alternatives to default WTO dispute settlement procedures which may not be appropriate for supporting cooperation on the matters ...


Tax And Arbitration, William Park Jun 2020

Tax And Arbitration, William 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 ...


Arbitrarily Selecting Black Arbitrators, Michael Z. Green May 2020

Arbitrarily Selecting Black Arbitrators, Michael Z. Green

Faculty Scholarship

Calls for increased diversity among arbitrators have surged with the growth of the employer movement, so-called mandatory arbitration, which requires employees to agree to arbitrate employment discrimination matters as a condition of employment. Despite good-faith efforts by neutral service providers, civil rights organizations, bar associations, and employer and employee groups to identify and address the need for more diverse arbitrators in mandatory arbitration, many commentators still lament that this diversity problem reflects negatively on access to justice. With the #MeToo movement’s focus in recent years on the lack of a public and transparent resolution for sexual harassment matters, as ...


Mediating Psychiatric Disability Accommodations For Workers In Violent Times, Michael Z. Green May 2020

Mediating Psychiatric Disability Accommodations For Workers In Violent Times, Michael Z. Green

Faculty Scholarship

Most workers in the United States are unhappy. Manifestations of that dissatisfaction can result in many workplace dilemmas when confronted with the situation of an employee dealing with mental illness. Fears of violence in our society have become prevalent with the increasing ferocity of high-profile and mass attacks in and out of the workplace. In believing mental illness contributes to some of these incidents, employers and co-workers have become extremely sensitive when a co-worker with a psychiatric disability has exhibited harassing or threatening behavior.

The Americans with Disabilities Act (ADA) was amended by the ADA Amendments Act of 2008 (ADAAA ...


Bringing Transparency And Accountability (With A Dash Of Competition) To Court-Connected Dispute Resolution, Nancy A. Welsh May 2020

Bringing Transparency And Accountability (With A Dash Of Competition) To Court-Connected Dispute Resolution, Nancy A. Welsh

Faculty Scholarship

Among the various dispute resolution processes, mediation is the most widely institutionalized in American courts. As a result, this Article focuses primarily, although not exclusively, on the data collected and disseminated regarding court-connected mediation. The Article begins with a brief description of the institutionalization of mediation and other dispute resolution processes in the federal judicial system and in select U.S. state court systems. This narrative reveals substantial reference to the availability of mediation but a dizzying patchwork in terms of institutionalization and a significant lack of system-wide information in some states. The Article then focuses on the data that ...


Federal Rules Of Platform Procedure, Rory Van Loo Apr 2020

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 uncovers the processes that these platforms use to resolve disputes, and proposes reforms. Other powerful businesses that intermediate, such as credit card companies ruling on a disputed charge between a merchant and consumer ...


Johnny Veeder Qc 1948–2020, William Park Mar 2020

Johnny Veeder Qc 1948–2020, William 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.


Does The New York Convention Allow A Non-Party To An Arbitration Agreement To Use Equitable Estoppel To Compel Arbitration?, Robert Jarvis Jan 2020

Does The New York Convention Allow A Non-Party To An Arbitration Agreement To Use Equitable Estoppel To Compel Arbitration?, Robert Jarvis

Faculty Scholarship

No abstract provided.


Adr: Disputing With A Modern Face, Or Bargaining For The Bargain Impaired?, Robert J. Condlin Jan 2020

Adr: Disputing With A Modern Face, Or Bargaining For The Bargain Impaired?, Robert J. Condlin

Faculty Scholarship

The Alternative Dispute Resolution (ADR) movement might turn out to be one of the most important chapters in the history of the American judicial system. Or, it might not. In its most grandiose form, ADR turns disputing on its head, transferring control over outcome from third-party decision-makers to the disputants themselves, and defining disputing procedure in ad hoc, party-constructed guidelines tailored to the circumstances rather than fixed, generic, and categorical rules applicable uniformly in all situations. In its less grandiose form, ADR simply institutionalizes a system of multi-party bargaining in which third-party neutrals help disputants identify individual interests and find ...


Beyond Settlement: Reconceptualizing Adr As “Conflict Process Strategy”, Deborah Thompson Eisenberg Jan 2020

Beyond Settlement: Reconceptualizing Adr As “Conflict Process Strategy”, Deborah Thompson Eisenberg

Faculty Scholarship

“Alternative dispute resolution” or “ADR” has reached a paradoxical moment: it is both ubiquitous in practice and at risk of extinction as a distinct concept and field. As the ADR field nears middle age—nearly fifty years after the Pound Conference of 1976—“ADR” has become so popular in name, fractured in practice, and jumbled in theory that it risks a metaphorical genericide, a concept in trademark law when a product name is used to refer to so many things (incorrectly) that it becomes “generic” and confusing. Analogously, the name “ADR” has been applied to so many different processes and ...


Dispute Resolution In Pandemic Circumstances, George A. Bermann Jan 2020

Dispute Resolution In Pandemic Circumstances, George A. Bermann

Faculty Scholarship

The peaceful resolution of disputes is among the most important earmarks of a regime attached to the rule of law. Even in countries in which, for one reason or another, courts do not work especially well, civil peace is of paramount importance. The absence of effective institutions for the administration of justice between and among private parties would spell a high degree of social disorder.

Even in the absence of a crisis such as we are experiencing, justice systems face a number of challenges in this day and age. Does a jurisdiction have a sufficient number of persons qualified to ...


To Ab Or Not To Ab?: Dispute Settlement In Wto Reform, Bernard M. Hoekman, Petros C. Mavroidis Jan 2020

To Ab Or Not To Ab?: Dispute Settlement In Wto Reform, Bernard M. Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent debates on the operation of the WTO’s dispute resolution mechanism have focused primarily on the Appellate Body (AB). We argue that this neglects the first-order issue confronting the rules-based trading system: sustaining the principle of de-politicized conflict resolution that is reflected in the negative consensus rule for adoption of dispute settlement findings. Improving the quality of the work of panels by appointing a roster of full-time professional adjudicators, complemented by reforms to WTO working practices that reduce incentives to resort to formal dispute settlement, can resolve the main issues that led to the AB crisis. Effective, coherent, and ...


Harassment, Workplace Culture, And The Power And Limits Of Law, Suzanne B. Goldberg Jan 2020

Harassment, Workplace Culture, And The Power And Limits Of Law, Suzanne B. Goldberg

Faculty Scholarship

This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment – from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to legal ...


Preventing The Bad From Getting Worse: The End Of The World (Trade Organization) As We Know It?, Bernard Hoekman, Petros C. Mavroidis Jan 2020

Preventing The Bad From Getting Worse: The End Of The World (Trade Organization) As We Know It?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent survey evidence and proposals made in long-running negotiations to improve WTO dispute settlement procedures illustrate that many stakeholders believe the system needs improvement. The Appellate Body crisis could have been avoided but for the use of consensus as WTO working practice. Resolving the crisis should prove possible because the matter mostly concerns a small number of more powerful WTO members. We make several proposals to revitalize the WTO appellate function but argue that unless the WTO becomes a locus for new rulemaking, re-establishing the appellate function will not prevent a steady decline in the salience of the organization. A ...


Insulating A Wto Investment Facilitation Framework From Isds, George A. Bermann, N. Jansen Calamita, Manjiao Chi, Karl P. Sauvant Jan 2020

Insulating A Wto Investment Facilitation Framework From Isds, George A. Bermann, N. Jansen Calamita, Manjiao Chi, Karl P. Sauvant

Faculty Scholarship

The authors identify several ways in which a WTO investment facilitation framework for development can be insulated from investor-state dispute settlement provisions in international investment agreements, and suggest specific formulations in this respect.


Stakeholder Preferences And Priorities For The Next Wto Director General, Matteo Fiorini, Bernard Hoekman, Petros C. Mavroidis, Douglas Nelson, Robert Wolfe Jan 2020

Stakeholder Preferences And Priorities For The Next Wto Director General, Matteo Fiorini, Bernard Hoekman, Petros C. Mavroidis, Douglas Nelson, Robert Wolfe

Faculty Scholarship

The WTO is looking for a new Director-General (DG). What does the trade community think is needed? This paper reports on the results of an expert survey undertaken as part of a research project on global trade governance at the European University Institute to solicit views on what WTO members and the international trade community consider the most important attributes of candidates for the position, as well as views on the substantive policy and institutional reform priorities confronting the WTO – and thus the new DG. The results suggest strong support for someone with managerial and political experience, and a professional ...


Making Sense Of The Arbitrator’S Ruling In Ds 316 Ec And Certain Member States – Measures Affecting Trade In Large Civil Aircraft (Article 22.6-Ec): A Jigsaw Puzzle With (At Least) A Couple Missing Pieces, Petros C. Mavroidis, Kamal Saggi Jan 2020

Making Sense Of The Arbitrator’S Ruling In Ds 316 Ec And Certain Member States – Measures Affecting Trade In Large Civil Aircraft (Article 22.6-Ec): A Jigsaw Puzzle With (At Least) A Couple Missing Pieces, Petros C. Mavroidis, Kamal Saggi

Faculty Scholarship

“The U.S. won a $7.5 Billion award from the World Trade Organization against the European Union, who has for many years treated the USA very badly on Trade due to Tariffs, Trade Barriers, and more. This case going on for years, a nice victory”, tweeted President Trump’s on October 3, 2019. The United States (US) won not only the highest amount of retaliation ever adjudicated in the history of the WTO but also an ongoing right to retaliate on an annual basis until such time as the EU had complied by either removing the subsidies it granted ...


Informing Wto Reform: Dispute Settlement Performance, 1995-2020, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste Jan 2020

Informing Wto Reform: Dispute Settlement Performance, 1995-2020, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste

Faculty Scholarship

This paper presents salient facts on the performance of WTO dispute settlement, using an updated dataset on cases adjudicated between 1992 and mid 2020. The dataset provides a comprehensive compilation of information on WTO disputes, including complainants, respondents and third parties; the substantive matters tabled; the WTO provisions invoked; the claims that are accepted or rejected by adjudicating bodies; the time involved to complete the consultation, panel and appeal (Appellate Body) stages; and the identity of panelists and how they were appointed. We highlight elements of the operation of the system that are salient to WTO reform discussions, while drawing ...


Dispute Resolution Neutrals' Ethical Obligation To Support Measured Transparency, Nancy A. Welsh Mar 2019

Dispute Resolution Neutrals' Ethical Obligation To Support Measured Transparency, Nancy A. Welsh

Faculty Scholarship

In 2016, the Consumer Financial Protection Bureau (CFPB) issued proposed rules that would have brought substantial transparency to mandatory pre-dispute consumer arbitration. In particular, the CFPB proposed to require regulated providers of financial products and services to report to the CFPB regarding their use and the outcomes of arbitrations conducted pursuant to arbitration clauses, and further, the CFPB proposed to make such information public (with appropriate redactions). Although Congress and the President ultimately annulled the CFPB’s proposed rule, its introduction revealed the need for dispute resolution neutrals to support bringing “measured transparency” to private dispute resolution. To place the ...


Unity And Diversity In International Law, William Park Jan 2019

Unity And Diversity In International Law, William 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 ...