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Articles 1 - 24 of 24
Full-Text Articles in Law
Interim Measures , Marianne Roth
Interim Measures , Marianne Roth
Journal of Dispute Resolution
Traditionally, requests for interim relief have been a construct of courts. However, arbitrators are increasingly being asked to make such rulings themselves. Requesting interim relief from an arbitrator, as opposed to the court, is particularly appealing in international arbitration, where parties often engage in arbitration as a way of avoiding local courts and any home court advantage that may be associated with them. Sometimes, though, interim relief may be unavailable from the arbitral tribunal; for example, when coercion is associated with the requested measure. In such situations, the powers to grant interim measures are shared between arbitral tribunals and courts. …
From Noise To Music: The Potential Of The Multi-Door Courthouse (Casas De Justicia) Model To Advance Systemic Inclusion And Participation As A Foundation For Sustainable Rule Of Law In Latin America , Mariana Hernandez-Crespo
From Noise To Music: The Potential Of The Multi-Door Courthouse (Casas De Justicia) Model To Advance Systemic Inclusion And Participation As A Foundation For Sustainable Rule Of Law In Latin America , Mariana Hernandez-Crespo
Journal of Dispute Resolution
International bodies have attempted to provide a more sustainable response to instability through legal reform with an emphasis on rule of law, access to justice, and the use of alternative or appropriate dispute resolution. Yet, in Latin America of yesterday and today, there is a marked gap between law on the books and law in action, due in part to lack of citizen engagement.
Evaluating Public Access Ombuds Programs: An Analysis Of The Experiences Of Virginia, Iowa And Arizona In Creating And Implementing Ombuds Offices To Handle Disputes Arising Under Open Government Laws , Daxton R. Stewart
Journal of Dispute Resolution
The article begins with a review of literature regarding ombuds, public access laws, and dispute systems design. It follows with case studies of the development of public access ombuds offices in Virginia, Iowa, and Arizona. Finally, this article draws conclusions from those experiences, offering guidance to aid other jurisdictions in designing their own ombuds programs.
Bit Unfair: An Illustration Of The Backlash Against International Arbitration In Latin America, A, David Ma
Bit Unfair: An Illustration Of The Backlash Against International Arbitration In Latin America, A, David Ma
Journal of Dispute Resolution
With the survival of BITs at fulcrum, the Second Circuit recently decided a highly publicized and notorious case applying international arbitration in Chevron Corp. v. Republic of Ecuador. This comment will discuss Chevron and its effects within the wider corpus of BIT international arbitration to provide an illustration of the current debate and status of the BIT framework. The purported benefits BITs provide to signatory countries exist theoretically, and to test these theoretical underpinnings, this comment will discuss Chevron for the purpose of providing real context to a predominately academic debate. Chevron shall demonstrate that theoretical effects and practical effects …
If It Only Had A Heart: Supreme Court Eschews Compassion For Cash-Strapped Consumers In Upholding The Validity Of Arbitration Clauses In Credit Repair Contracts, Collin Koenig
Journal of Dispute Resolution
in CompuCredit Corp. v. Greenwood, the Supreme Court was faced with the issue of whether consumers' claims under the CROA can be resolved through contractually required arbitration, or whether the language of the statute requires resolution between credit repair organizations and consumers may include enforceable arbitration agreements. This note criticizes the Supreme Court's reasoning, partly inspired by Justice Ginsburg's dissent. In enforcing arbitrability of CROA disputes, the Court has acted contrary to Congress' purposes of the Act: to ensure that consumers are making an "informed decision" when dealing with CROs and to protect consumers from deceptive credit repair services. In …
Faa Versus The Magnuson - Moss Warranty Act: Which Warrants Precedence, The, Tyler Beckerle
Faa Versus The Magnuson - Moss Warranty Act: Which Warrants Precedence, The, Tyler Beckerle
Journal of Dispute Resolution
These questions have proven to be a formidable foe for the judiciary. Moreover, courts and commentators have been divided as to what answer will produce the best policy. In 2002, the discussion seemed to be headed toward conclusion after the Fifth and Eleventh Circuits found that the FAA should trump the MMWA in the event of statutory conflict. However, with the Ninth Circuit’s decision in Kolev v. Euromotors West/The Auto Gallery, this polarizing issue has once again become a focus in American jurisprudence. While the Ninth Circuit has recently withdrawn Kolev sua sponte, it is doubtful that the Ninth Circuit …
Supreme Court Issues Notice To Courts: Bifurcated Proceedings Still Required, Valerie Dixon
Supreme Court Issues Notice To Courts: Bifurcated Proceedings Still Required, Valerie Dixon
Journal of Dispute Resolution
The United States Supreme Court has made its preference for arbitration widely known through continued declarations of its policy to that effect. In KPMG v. Cocchi, the Supreme Court reaffirmed that preference once again. In that case, however, the Court also found a need to issue a reminder to lower courts that its decision in Dean Witter v. Byrd was still the law of the land. One of the most interesting questions arising from this clear reminder to adhere to precedent is why the Supreme Court felt the need to articulate it at all.
State Legislative Update , Lacy Cansler, Daniel Levy, Kelisen Molloy, Henry Tanner
State Legislative Update , Lacy Cansler, Daniel Levy, Kelisen Molloy, Henry Tanner
Journal of Dispute Resolution
While on the surface it seems like any legislation helping Americans keep their homes is a good idea, some critics question the effectiveness of these laws. They cite evidence (to be discussed below) showing foreclosure rates do not improve in states with foreclosure mediation laws. Others argue that while it may only be a short-term fix towards the larger problems that ail our economy, foreclosure mediation has shown to be a positive measure that helps many Americans, especially when the law is properly written. This paper will analyze the recent foreclosure mediation laws, and will explore the effectiveness of this …
Property Insurance Appraisal: Is Determining Causation Essential To Evaluating The Amount Of Loss , Ashley Smith
Property Insurance Appraisal: Is Determining Causation Essential To Evaluating The Amount Of Loss , Ashley Smith
Journal of Dispute Resolution
While the appraisal procedure is commonly used in property insurance claims, the scope of an appraisal is contested. Courts are divided on whether to allow the determination of causation within an appraisal process. Whether or not to allow the determination of causation in appraisal and the reasoning behind each position can be influential for the majority of state and federal courts who have yet to confront this issue. Outlined below is an overview of the appraisal process within the property insurance context, a distinction of causation from coverage, and courts’ reasoning for allowing or forbidding the determination of causation in …
United States Supreme Court And Class Arbitration: A Tragedy Of Errors, The Symposium, Gary Born, Claudio Salas
United States Supreme Court And Class Arbitration: A Tragedy Of Errors, The Symposium, Gary Born, Claudio Salas
Journal of Dispute Resolution
This Essay describes and critiques the U.S. Supreme Court's recent misadventures with class arbitration. First, the Essay reviews the origins and rise of class arbitration under the FAA, particularly following the Supreme Court's Bazzle decision. In Part II, the Essay discusses application of the unconscionability doctrine to class action waivers, under the California courts' Discover Bank doctrine. In Part III, the Essay recounts the Supreme Court's retrenchment from class arbitration in Stolt-Nielsen and, more fully, in Concepcion. It also critiques the Court's apparent analysis in Concepcion and offers an alternative analysis for the Concepcion result that is more consistent with …
If We Could, Then So Can You: The Seventh Circuit Resurrects Its Judge Versus Arbitrator Analogy To Reinstate A Repeat Arbitrator Note, Collin Koenig
If We Could, Then So Can You: The Seventh Circuit Resurrects Its Judge Versus Arbitrator Analogy To Reinstate A Repeat Arbitrator Note, Collin Koenig
Journal of Dispute Resolution
Arbitration clauses provide a method for companies to settle business disputes without expending the amount of time and resources required in judicial proceedings. When an arbitration clause is invoked, a neutral third party takes on the role of adjudicator, and the parties defer to the unbiased decision of that neutral. Sometimes what is "unbiased" becomes more uncertain when parties contract for the right to appoint their own arbitrators. Trustmark Ins. Co. v. John Hancock Life Ins. Co. stands for the principle that the Seventh Circuit will relax the impartiality standard to which they hold party-appointed arbitrators, especially compared to the …
Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong
Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong
Journal of Dispute Resolution
In many ways, the relationship between litigation and international commercial arbitration is a curious one, with experts adopting diametrically opposed positions on how the two procedures do or should interact. For example, some people take the view that international commercial arbitration is a uniquely self-contained dispute resolution mechanism that proceeds entirely independent of state control.'
Court Intervention In International Arbitration: The Case For Compulsory Judicial Internationalism Symposium, Frederic Bachand
Court Intervention In International Arbitration: The Case For Compulsory Judicial Internationalism Symposium, Frederic Bachand
Journal of Dispute Resolution
Part I sets out in more detail the proposed interpretive rule. It does so by explaining why the relevant international normative context should always matter when courts are called upon to resolve questions of international arbitration law to which local sources provide no clear answers. In Part H, I address the issue of how precisely that context ought to bear upon the interpretive process. In doing so, I highlight some important distinctions regarding how that context should bear upon the courts' reasoning depending on whether the issue in dispute is governed by uniform law instruments-such as the New York Convention …
New York Convention And The American Federal System, The Symposium, Christopher R. Drahozal
New York Convention And The American Federal System, The Symposium, Christopher R. Drahozal
Journal of Dispute Resolution
Whether state law can play a broader role in international arbitration matters in the United States depends on the extent to which the New York Convention and Chapter Two of the FAA (which implements the Convention) preempt state arbitration law. This article undertakes a preliminary analysis of that broad topic by examining several legal questions central to determining the preemptive effect of the New York Convention: (1) What effect, if any, does the federal-state clause (Article XI) have on U.S. obligations under the Convention? (2) To what extent does Chapter Two of the FAA apply in state court? and (3) …
Interference Of The Court Of The Seat With International Arbitration, The Symposium, Giulia Carbone
Interference Of The Court Of The Seat With International Arbitration, The Symposium, Giulia Carbone
Journal of Dispute Resolution
This article looks upon two fundamental questions: (1) whether arbitrators should comply with a local court's order aimed at suspending or interrupting the running of arbitral proceedings, and (2) what type of remedies should a party receive when courts unjustly interfere with their right to arbitrate. This article will explore these two questions in four parts. Part II focuses on the interference with international commercial arbitration by the court at the place of the arbitration. It does so by taking into account ICC cases, some relevant national judgments, and deals with the solutions offered by Articles 8 and 16 of …
Concerning Preemption: Upholding Consent Under The Federal Arbitration Act Note, Shane Blank
Concerning Preemption: Upholding Consent Under The Federal Arbitration Act Note, Shane Blank
Journal of Dispute Resolution
AT&T Mobility LLC v. Concepcion represents the latest failed effort by a state to assert some level of control over consensual arbitration agreements. It also represents an affirmation by the U.S. Supreme Court of a long-standing notion that arbitration agreements, standing on equal footing with other contracts, must be enforced according to their terms-holding consent to be the paramount consideration in judicial analysis. This note will examine the lengthy history of the FAA's preemptive power under the Supremacy Clause, explore the U.S. Supreme Court's time-honored rationale for choosing when to exercise its preemptive powers to invalidate state law, and evaluate …
Unconscionable Construction: How The Ninth Circuit Evades The Faa By Severing Arbitration Agreements As Unconscionable Note, Daniel B. Mitchell
Unconscionable Construction: How The Ninth Circuit Evades The Faa By Severing Arbitration Agreements As Unconscionable Note, Daniel B. Mitchell
Journal of Dispute Resolution
Bridge Fund Capital Corp. v. FastBucks Franchise Corp. illustrates a recent manifestation of an ongoing judicial hostility to arbitration. As the Supreme Court has developed its FAA jurisprudence to limit the severance of arbitration agreements, many lower courts have continued to develop legal justifications to circumvent these restrictions. The FAA's savings clause does afford some latitude for severance of arbitration agreements, but the Supreme Court has not yet defined the limits of the savings clause, nor whether the general contract defense and their justifications are sufficient to supersede FAA policy. Bridge Fund shows how the doctrine of unconscionability it being …
Convergence And Divergence In International Dispute Resolution Symposium, Peter Rutledge
Convergence And Divergence In International Dispute Resolution Symposium, Peter Rutledge
Journal of Dispute Resolution
This symposium submission draws heavily on law and economic literature to develop its thesis. Part I lays out the literature behind the parties' choice to opt for arbitration. It also builds upon that literature by attempting to sketch out some preliminary reasons why parties might opt for arbitration over another form of dispute resolution. Part II charts how, along various axes, arbitration has begun to converge with litigation - thereby depriving it of a comparative advantage that it once enjoyed - due to innovations in arbitration and innovations in the field of international civil litigation. In brief, the traditional advantages …
Introduction To The Court Of Arbitration For Sport (Cas) & The Role Of National Courts In International Sports Disputes, An Symposium, Louise Reilly
Introduction To The Court Of Arbitration For Sport (Cas) & The Role Of National Courts In International Sports Disputes, An Symposium, Louise Reilly
Journal of Dispute Resolution
The founding purpose of the Court of Arbitration for Sport (CAS) was to take international sports disputes out of national courts and provide a highly specialized forum where those disputes could be heard and decided, quickly and inexpensively, according to a flexible procedure. Since its inception, CAS has gained the recognition and trust of the international sports community and today, is the last instance of appeal for parties involved in a wide-range of sports-related disputes, including those related to all Olympic sports and many non-Olympic sports, football disputes, doping infractions and international commercial contracts. CAS has come to provide sportsmen …
Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps Symposium, S. I. Strong
Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps Symposium, S. I. Strong
Journal of Dispute Resolution
Finally, the purpose of this Article is not to provide answers to particular questions, since far too much depends on the individual facts and circumstances of a particular dispute to allow for abstract generalizations. Instead, the goal is to identify a useful framework for analysis of matters relating to international commercial arbitration so that newcomers and infrequent participants in this area of law can approach their specific concerns with a higher degree of understanding and sophistication.
Two Steps Forward, One Step Back: Must The District Court Issue A Stay After A Decision Adverse To Arbitration Is Appealed, And To What Extent Are Arbitration Clauses Applied Retroactively Note, Benjamin Faber
Journal of Dispute Resolution
By creating new rules to fill in the gaps left by the FAA, the federal circuit courts may have muddied the waters of how and why parties assent to arbitration, and the ramifications of their decisions could change how and why parties bind themselves and each other to arbitration in the future. This note will address these issues in six remaining parts. Part II will briefly outline the pertinent facts of Levin." Part III addresses the circuit split on whether federal courts should issue an automatic stay of legislation pending an appeal to compel arbitration under § 16(a)(1)(A) of the …
New Use Of The Doctrine Of Unconscionability To Invalidate Arbitration Agreements In Consumer Contracts, The Note, Valerie Dixon
New Use Of The Doctrine Of Unconscionability To Invalidate Arbitration Agreements In Consumer Contracts, The Note, Valerie Dixon
Journal of Dispute Resolution
Manfredi v. Blue Cross and Blue Shield suggests that this old judicial hostility is alive and well in Missouri jurisprudence. In an effort to level the playing field between parties of unequal bargaining power, Missouri courts have applied the unconscionability doctrine as a way to sidestep the United States Supreme Court's asserted policy favoring arbitration over litigation.7 This note considers the new approach of Missouri courts in invalidating arbitration agreements through the doctrine of unconscionability in the consumer context.