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Articles 1 - 25 of 25
Full-Text Articles in Law
In The Shadow Of Soft Law: The Handling Of Corporate Social Responsibility Disputes Under The Oecd Guidelines For Multinational Enterprises, Leyla Davarnejad
In The Shadow Of Soft Law: The Handling Of Corporate Social Responsibility Disputes Under The Oecd Guidelines For Multinational Enterprises, Leyla Davarnejad
Journal of Dispute Resolution
This socio-legal study undertakes a comprehensive analysis of the various practices NCPs apply to solve CSR disputes during specific instances. It does so in four parts, starting with an outline of the legal background of the CSR debate and movement in Part II. Part Ill examines the construction and content of the Guidelines. Also, Part III explores the soft law nature debate and how it shapes the NCPs' commitment and implementation of the Guidelines. In Part IV, the empirical findings of this study are presented to illuminate how the soft law nature of the Guidelines shapes the NCPs' commitment and …
Consent Is The Key To Compel: The Eighth Circuit Properly Denies A Motion To Compel A Non-Signatory To Arbitrate United States Court Of Appeals, Eighth Circuit: Bank Of America V. Umb Financial Services, Tom Swoboda
Journal of Dispute Resolution
This Note addresses a recent Eighth Circuit decision concerning the issue of whether or not to compel arbitration between a non-signatory plaintiff and a defendant who desires to arbitrate the plaintiff's claims.' After examining a recent Supreme Court decision in which the Court articulated certain principles of state contract law that allow a court to compel arbitration by or against nonparties to a contract, this Note will explore precedent in Missouri that demonstrates a stringent process in order to compel non-signatories to arbitration. The various federal circuit court treatments of this commonly litigated issue and its underlying split on the …
Are We Paper Tigers - The Limited Procedural Power Of Arbitrators Under Chinese Law, Chi Manjiao
Are We Paper Tigers - The Limited Procedural Power Of Arbitrators Under Chinese Law, Chi Manjiao
Journal of Dispute Resolution
This article explores the extent arbitrators exercise procedural power under Chinese law in six parts. Part II briefly provides background information for the legal framework of Chinese arbitration law and the "dual-track system" in the Chinese arbitration regime. The ensuing parts deal with the three major aspects of arbitrators' procedural power respectively: Part III discusses the power of making jurisdictional decisions, Part IV analyzes the power of making applicable law decisions, and Part V explores the power of issuing interim measures. Part VI concludes that in all three aspects, the procedural power of arbitrators under Chinese law is heavily restricted …
Ethical Problems In Class Arbitration, Andrew Powell, Richard A. Bales
Ethical Problems In Class Arbitration, Andrew Powell, Richard A. Bales
Journal of Dispute Resolution
This article examines two significant conflicts of interest that arise in class arbitration in six parts. Part II provides background on the recent evolution of class arbitration, explaining how the Supreme Court had decided several cases involving class arbitration but has not explicitly ruled that class actions are either permitted or forbidden. Part III discusses the conflicts of interest that could arise at the beginning of class arbitration. Part IV discusses conflicts of interest that arise at the end of class arbitration. Part V of this article argues that if and when Congress amends the Federal Arbitration Act to statutorily …
Regulating Mediator Qualifications In The 2008 Eu Mediation Directive: The Need For A Supranational Standard, Ashley Feasley
Regulating Mediator Qualifications In The 2008 Eu Mediation Directive: The Need For A Supranational Standard, Ashley Feasley
Journal of Dispute Resolution
This paper will illustrate how the regulation of mediator training and the implementation of minimum qualification levels will help the Directive have a longterm impact in six parts. Part II will briefly examine mediation in an international law context. Part III will discuss the history of the Directive and pertinent provisions of the Directive. Part IV will address the recent situation in Italy, with a particular focus on the opposition to Legislative Decree 28, mandatory mediation, and the perceived lack of mediator qualifications. Part V will examine the current mediator trainings and qualification standards that are required in other selected …
Missouri Courts Side With Employees Against The Eighth Circuit: Continued Employment Does Not Constitute Acceptance And Consideration For Mandatory Arbitration Agreements: Frye V. Speedway Chevrolet Cadillac, Laura Browne
Journal of Dispute Resolution
The question of whether continued employment constitutes acceptance and consideration for an employment contract, particularly applied to mandatory arbitration clauses, has split the authorities who decide on cases arising out of Missouri. The United States Court of Appeals for the Eighth Circuit, while purporting to apply Missouri law in cases arising out of Missouri, holds that an employee who continues to work for his or her employer after an arbitration program has been implemented is bound by it by the virtue of his or her continued employment. Missouri courts, however, disagree with this interpretation of Missouri law and held in …
Foreigners Beware: Exploring The Tension Between Saudi Arabian And Western International Commercial Arbitration Practices: In Re Aramco Services Co., Whitney Hampton
Foreigners Beware: Exploring The Tension Between Saudi Arabian And Western International Commercial Arbitration Practices: In Re Aramco Services Co., Whitney Hampton
Journal of Dispute Resolution
Increasing globalization in the Middle East has resulted in greater commercial interaction between Saudi Arabia and the West. This, in turn, has led to a resurgence of international arbitration agreements between Saudi Arabian businesses and their Western counterparts. However, the strong religious undertones in Saudi Arabian law have given rise to tension with the West, and the United States, in particular. In re Aramco Services is but a tiny piece in a very large puzzle. While the opinion is short, it serves as an indication, or perhaps a reminder, of the larger implications at work. This note will discuss these …
State Legislative Update , Benjamin Angulo, Daniel J. Romine, Matthew Schacht
State Legislative Update , Benjamin Angulo, Daniel J. Romine, Matthew Schacht
Journal of Dispute Resolution
This analysis will examine the sample of bills in four parts. Because some of the proposed state bills are silent on whether their respective bills are reserved for non-commercial matters, Part II examines whether the bills apply to businesses that are parties to business-to-business international commercial contracts. Part III assesses the bills' definition of foreign law to better understand the scope of the anti-foreign law bans. Because each anti-foreign law bill initially defines foreign law as one that is created outside the U.S., Part III analyzes whether the bills' foreign law definitions include international organizations and tribunals. It is important …
No Signature Needed: The Supreme Court Of California Settles Precedent And Furthers The Goals Of The Medical Injury Compensation Reform Act: Ruiz V. Podolsky, Meghan L. Travis
No Signature Needed: The Supreme Court Of California Settles Precedent And Furthers The Goals Of The Medical Injury Compensation Reform Act: Ruiz V. Podolsky, Meghan L. Travis
Journal of Dispute Resolution
In Ruiz v. Podolsky,2 the California Supreme Court ended the strife surrounding wrongful death claims when Rafael Ruiz (Ruiz), the decedent, executed a binding arbitration agreement.3 The court was able to soundly support its decision on applicable legislation, case law and public policy after weaving its way through a turbulent mish-mash of contradictory precedent. This note will discuss: (1) California's attempt to decrease the cost of medical malpractice claims, (2) the ramifications of Ruiz's allowing arbitration agreements to bind heirs, and (3) the differing approaches states have taken toward the application of binding arbitration agreements to beneficiaries
Pleading For Justice: The Availability Of Plea Bargaining As A Method Of Alternative Resolution At The International Criminal Court, Kate Kovarovic
Pleading For Justice: The Availability Of Plea Bargaining As A Method Of Alternative Resolution At The International Criminal Court, Kate Kovarovic
Journal of Dispute Resolution
This article serves to illustrate how the implementation of a plea bargaining process at the ICC would enable the Court to achieve both peace and justice. Part II begins by analyzing the history of plea bargaining in the international criminal arena, using the ICTY and the ICTR as models of the successful incorporation of plea bargaining into a court's adjudication process. Part III transfers these advantages to the ICC by examining how the plea bargaining process would advance the Court's goals of achieving peace and justice. Part IV moves from the theoretical to the practical by analyzing how the principles …
Family, The Market, And Adr, The, Amy J. Cohen
Family, The Market, And Adr, The, Amy J. Cohen
Journal of Dispute Resolution
This Article proceeds in three Parts. I begin by briefly summarizing what I will refer to as separate spheres ideology-the idea that our normative understandings of the family and the market are constructed in contradistinction to one another. I then show how this conceptual distinction between the family and the market shaped the development of alternative dispute processing during two periods of time. The first period, which I introduce to frame the second, examines how dispute processing reformers-beginning during the Progressive era and continuing to the 1930s-distinguished alternative forums for family disputes from alternative forums for commercial ones. In Part …
Comment: Trends And Challenges In Bringing Together Adr And The Rule Of Law, Stephanie E. Smith
Comment: Trends And Challenges In Bringing Together Adr And The Rule Of Law, Stephanie E. Smith
Journal of Dispute Resolution
The goals of justice, peace, and prosperity will not be achieved overnight. Strategies that aim to achieve a perfect state in a short time frame are doomed to failure. Rule of law approaches should be individualized for local context, and be nimble enough to adapt over time to advance these ambitious goals. Success will require drawing upon expertise from many practice areas and academic fields, and coordinating activities to maximize limited resources.
Procedural Justice And The Rule Of Law: Fostering Legitimacy In Alternative Dispute Resolution, Rebecca Hollander-Blumoff, Tom R. Tyler
Procedural Justice And The Rule Of Law: Fostering Legitimacy In Alternative Dispute Resolution, Rebecca Hollander-Blumoff, Tom R. Tyler
Journal of Dispute Resolution
In Part II, we provide background on the psychology of procedural justice. Then, because the term rule of law has been used so widely and in so many different ways, we explain its various meanings and go on to draw connections between the elements of procedural justice and the rule of law, highlighting both the similarities and distinctions between the two principles. We then marshal evidence in support of the critical role that procedural justice and rule of law values play in fostering perceptions of legitimacy. Part III explores the links among procedural justice, rule of law, and specific ADR …
Alternative Dispute Resolution And The Rule Of Law In International Development Cooperation, James Michel
Alternative Dispute Resolution And The Rule Of Law In International Development Cooperation, James Michel
Journal of Dispute Resolution
This paper briefly reviews the concept of development and related international cooperation. It then examines how the rule of law has been addressed in development programs and offers some thoughts about the contribution of ADR for advancing the rule of law and, in turn, contributing to human security, wellbeing, and dignity.
Reflections On Designing Governance To Produce The Rule Of Law, Lisa Blomgren Bingham
Reflections On Designing Governance To Produce The Rule Of Law, Lisa Blomgren Bingham
Journal of Dispute Resolution
This article first briefly reviews definitions of the rule of law. Second, it briefly reviews current understandings and approaches to governance. Third, it introduces the concept of dispute systems design, its application to collaborative governance across the policy continuum, and failures in the rule of law as seen through this frame. Finally, it provides examples of rule of law initiatives organized across the policy process in governance.
Adr And Transitional Justice As Reconstructing The Rule Of Law, Michal Alberstein
Adr And Transitional Justice As Reconstructing The Rule Of Law, Michal Alberstein
Journal of Dispute Resolution
This paper addresses the role of ADR in reconstructing the rule of law following the critique this idea received during the 20th century, and exemplifies this role through reference to another alternative movement in law-The Transitional Justice movement. In contrast to efforts to reconcile the notion of the rule of law with ADR, or to demarcate the proper interaction between these social institutions in achieving justice, this paper argues for a deeper connection between the two notions: After briefly analyzing the intricate meanings of the rule of law notion through history and its relation to ADR, the paper continues to …
Deliberative Look At Alternative Dispute Resolution And The Rule Of Law, A, Peter Muhlberger
Deliberative Look At Alternative Dispute Resolution And The Rule Of Law, A, Peter Muhlberger
Journal of Dispute Resolution
This paper critiques the foundations of Aragaki's analysis, but also gives credit on the importance of dealing with people as less than fully rational. The critique suggests, again, a deep commonality between DD and ADR and potential improvements to both approaches. True collaboration between these approaches, however, requires some re-theorizing of both, including a reconsideration of rationality itself. This paper will sketch some ways in which this might be achieved and, in particular, how DD theory and research may prove helpful for ADR.
On Precarious Ground: Binding Arbitration Clauses, Collective Bargaining Agreements, And Waiver Of Statutory Workplace Discrimination Claims Post-Pyett - Duraku V. Tishman Speyer Properties, Inc., J. Nicholas Haynes
Journal of Dispute Resolution
During the 1960s, federal and state governments put into place a maze of statutes aimed at protecting the civil rights of minorities, both in society and in the workplace. While these statutes have undoubtedly lessened workplace discrimination for minorities in the United States, there are still some areas that are uncertain or unsettled, especially when a union is involved on behalf of the employees. More to the point, there has been a wealth of confusion as to whether the right to bring a statutory workplace discrimination claim can be waived when a worker joins a union and allows the union …
Access To Justice And Alternative Dispute Resolution, William Davis, Helga Turku
Access To Justice And Alternative Dispute Resolution, William Davis, Helga Turku
Journal of Dispute Resolution
This article reviews access to justice both theoretically and in practice. Second, it highlights some of the challenges and successes of implementing access to justice projects. Finally, it discusses alternative dispute resolution (ADR) reforms in the developing world as one important element of access to justice.
Lost In Translation: Can Exporting Adr Harm Rule Of Law Development, Cynthia Alkon
Lost In Translation: Can Exporting Adr Harm Rule Of Law Development, Cynthia Alkon
Journal of Dispute Resolution
This article will begin with a brief explanation of rule of law development work. Section III will describe the role of legitimacy in developing rule of law. Section IV will discuss some examples of how ADR programs are typically included in rule of law development work. Section V will discuss when promotion of ADR programs may work against the development of rule of laws, specifically when ADR might seem more like a new form of corruption or when it might reinforce already existing bad practices. Section VI will offer some questions for ADR and rule of law development practitioners to …
Dispensing Injustice: Stolt-Nielsen And Its Implications - Stolt-Nielsen S.A. V. Animalfeeds Int'l Corp., Nicholas Goodrich
Dispensing Injustice: Stolt-Nielsen And Its Implications - Stolt-Nielsen S.A. V. Animalfeeds Int'l Corp., Nicholas Goodrich
Journal of Dispute Resolution
The immediate effect of the holding was to allow a group of corporate defendants to use their superior bargaining position in the contracting process to effectively shield themselves from liability. Although Stolt-Nielsen involved business entities, the case also has implications in the consumer context. If the Court were to extend the reasoning of the case to disputes involving adhesion contracts, corporations would enjoy this immunity in the context of consumer disputes. Far from a hypothetical exercise in the reaches of Supreme Court jurisprudence, the Court is expected to decide this very issue during the 2010 term. In light of these …
New Twist On An Old Approach: Missouri's Use Of Unconscionability And Consent In The Class Arbitration Waiver Analysis - Brewer V. Missouri Title Loans, Inc., A, Whitney Hampton
Journal of Dispute Resolution
In recent years, the inclusion of arbitration agreements in consumer product contracts has become increasingly popular. In an effort to shield themselves from the damaging effects of expensive class action suits by consumers, many companies have begun to include class arbitration waivers in their contracts, which effectively mandate individual arbitration. These arbitration agreements were initially met with optimism. However, courts have seemingly developed a sense of disdain toward them because of their apparent ability to perpetuate disreputable business practices. This has left many courts searching for ways to invalidate class arbitration waivers.
De Novo A No No: Contractually Expanded Judicial Review Clauses Do Not Preclude Faa Application In State Court Unless The Parties Make It Intentionally Clear The Faa Does Not Apply In Their Agreement - Raymond James Fin. Servs., Inc. V. Honea, Tom Swoboda
Journal of Dispute Resolution
This Note addresses a recent Alabama Supreme Court decision concerning the issue of contracted appellate review in arbitration agreements. After analyzing the history of enforcement of arbitration agreements between contracting parties in U.S. Supreme Court precedent, this Note will explore the most recent Supreme Court decision regarding when parties may seek judicial review of arbitration awards. The Federal Arbitration Act's (FAA) preemptive effect over state court law will also be addressed, as the Supreme Court was not thoroughly explanatory on the issue. This Note will also evaluate and compare another state court ruling in Pennsylvania on the same judicial review …