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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 …
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 …
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 …
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.
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 …
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 …
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.
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 …
Participation In Governance From A Comparative Perspective: Citizen Involvement In Telecommunications And Electricity In The United Kingdom, France And Sweden, Dorit Rabinstein Reiss
Participation In Governance From A Comparative Perspective: Citizen Involvement In Telecommunications And Electricity In The United Kingdom, France And Sweden, Dorit Rabinstein Reiss
Journal of Dispute Resolution
Since the goal is to compare the European experiments with those adopted in the United States, the paper is structured around that comparison. This part introduces the issues and the methodology. Part II provides a brief description of the case studies, addressing similarities and differences among the European countries. Part III then discusses several mechanisms considered necessary to participation in the United States that have been rejected by the agencies in the European countries. Part IV describes the parallels, though it also points out differences between the countries individually, as well as between them and the United States collectively. Part …
From Kneecappings Toward Peace: The Use Of Intra-Community Dispute Resolution In Northern Ireland, Patrick Cody
From Kneecappings Toward Peace: The Use Of Intra-Community Dispute Resolution In Northern Ireland, Patrick Cody
Journal of Dispute Resolution
Violence has been a way of life in Northern Ireland for many years as communities were divided by separate warring paramilitary factions. Each side believed that it existed for the benefit and protection of the local community against the forces on the other side. The Irish Republican Army ("IRA") pledged itself to the defense of Northern Irish Catholics from persecution by those loyal to the British government. Similarly, groups such as the Ulster Volunteer Force ("UVF") and the Ulster Defense Association ("UDA") formed to defend Protestant citizens against IRA attacks. Policing of local neighborhoods fell largely to these groups. Enforcement …
Expanding The Power Of U.S. Courts In Private International Arbitration - Moderation Loses To An Extreme, Amy Moore
Journal of Dispute Resolution
Since its inception, 28 U.S.C. § 17822 has been the subject of revisions, amendments, and much debate. This history is symptomatic of the evolving nature of United States presence in the international legal and business world; however, the statutory changes have not always been clear in purpose or application. In 2004, the Supreme Court granted certiorari for Intel Corp. v. Advanced Micro Devices, Inc., in order to solidify interpretation of § 1782's latest rendition, a 1964 congressional revision. Unfortunately, in expanding the accepted scope of § 1782, the Court created new ambiguity, especially in how the statute should relate to …
Media, Memory, And Forgiveness: Case Studies In South Africa And Argentina's Conflict Resolution Processes, Byron T. Scott, Caroline Escudero, Anya Litvak
Media, Memory, And Forgiveness: Case Studies In South Africa And Argentina's Conflict Resolution Processes, Byron T. Scott, Caroline Escudero, Anya Litvak
Journal of Dispute Resolution
Studies of conflict frames' customarily include neither mid- to long-term resolution nor the role of the media in that healing process. In theory, the formal reconciliation processes that have followed internal conflicts in many nations provide resolution and a pathway to long-term healing. But do they? As the chief cultural guardians of national memories, what is the role of the media? Between the spikes of crisis reporting, are there persistent frames of journalistic messages that affect how ever-receding events are viewed by new generations? This paper looks at media behavior in two contrasting nations, Argentina and South Africa, while arguing …
Media And International Conflict: A Multidisciplinary Approach, Eytan Gilboa
Media And International Conflict: A Multidisciplinary Approach, Eytan Gilboa
Journal of Dispute Resolution
This study suggests a new framework for analysis of media coverage and its role in international conflict. The framework is based on integration of theories and models from both international studies and communication. The work begins with a brief analysis of major changes that have occurred in last two decades in the nature and evolution of international conflicts. The analysis offers significant distinctions among types, levels, and phases of conflict. Next, the study presents major changes that have occurred in the media and offers significant distinctions among levels, types, and functions of media. Based on all these concepts and ideas, …
Vanishing Trials: An English Perspective, Robert Dingwall, Emilie Cloatre
Vanishing Trials: An English Perspective, Robert Dingwall, Emilie Cloatre
Journal of Dispute Resolution
This paper reviews the recent history of civil litigation in England and Wales. While previous work by Professor Kritzer has shown an absolute decline in trials over the last fifty years, with some fluctuation around this trend, this comment suggests that this may now have bottomed out. Given the evidence of a simultaneous, and continuing, decline in the number of claims filed, it may even be the case that trials are, at least temporarily, playing a larger part in the civil justice system than they have for many years. In contrast to the experience in the U.S., these changes seem …
Not Quite A World Without Trials: Why International Dispute Resolution Is Increasingly Judicialized, Andrea Kupfer Schneider
Not Quite A World Without Trials: Why International Dispute Resolution Is Increasingly Judicialized, Andrea Kupfer Schneider
Journal of Dispute Resolution
The focus of this brief essay is to first outline some of the factors leading to increasing judicialization on the international level where public disputes (disputes between countries) are increasingly resolved by a neutral third party. In some cases, this increased judicialization includes arbitration (which we might put under the category of ADR in the U.S.). However, the use of arbitration at the international level is not ADR as we would define it in the U.S., since the important element at the international level is that the decision-making power is handed over to a third party-whether we call that a …
Parties To International Commercial Arbitration Agreements Beware: Bankruptcy Trumps Supreme Court Precedent Favoring Arbitration Of International Disputes, Lindsay Biesterfeld
Parties To International Commercial Arbitration Agreements Beware: Bankruptcy Trumps Supreme Court Precedent Favoring Arbitration Of International Disputes, Lindsay Biesterfeld
Journal of Dispute Resolution
Phillips v. Congelton (In re White Mountain Mining Co.), presents a heightened version of the conflict between the general policy favoring enforcement of arbitration agreements and the policy favoring resolution of bankruptcy-related claims in the bankruptcy court proceedings as the case involves a dispute over the enforcement of an international agreement to arbitrate a claim that is a "core" bankruptcy proceeding. In Phillips, the Fourth Circuit analyzed the underlying purposes of both the bankruptcy code and the federal arbitration statutes, and resolved the conflicting purposes of the two by giving greater deference to the policy favoring resolution of bankruptcy-related claims …
Vanishing Or Increasing Trials In The Netherlands, Carolien Klein Haarhuis, Bert Niemeijer
Vanishing Or Increasing Trials In The Netherlands, Carolien Klein Haarhuis, Bert Niemeijer
Journal of Dispute Resolution
In this article, we will address the question of whether something like vanishing trials exists in the Netherlands. This could be the case, as some of the causes of the decline in the number of trials advanced by Galanter are also observed in the Netherlands. ADR is gaining popularity, the costs of court procedures are on the rise, and there clearly exists a development toward "managerial justice."
Adr Through A Cultural Lens: How Cultural Values Shape Our Disputing Processes, Julia Ann Gold
Adr Through A Cultural Lens: How Cultural Values Shape Our Disputing Processes, Julia Ann Gold
Journal of Dispute Resolution
I arrived for my second Nepali language class on time, but the teacher kept chatting about inconsequential things. I was paying by the hour, and we had already spent 25 minutes talking about nothing! A week later, I received an invitation to an art exhibit. The location was "Royal Museum," so that is where I went, only to find an empty building and no people. What had I missed? In my first meeting with the Dean of the Law Campus, we talked about trekking, the upcoming religious holidays, his visit to Seattle two years ago, relatives in the United States, …
International Arbitration Is Not Your Father's Oldsmobile, Kenneth F. Dunham
International Arbitration Is Not Your Father's Oldsmobile, Kenneth F. Dunham
Journal of Dispute Resolution
This article provides a short prospectus for the unwary lawyer who must venture into unfamiliar territory abroad. Although there are numerous arbitral forums available in countries all over the world, this article will focus primarily on the LCIA and the ICC. Following a brief history of international arbitration and the history of these two international arbitral forums, the article will discuss some of the major issues in international arbitration such as forum selection, issue preclusion and procedural matters. This article also includes sections on appealing awards and enforcement of awards under existing international treaties. The article is brought to a …
Why Further Development Of Adr In Latin America Makes Sense: The Venezuelan Model, Jose Alberto Ramirez Leon
Why Further Development Of Adr In Latin America Makes Sense: The Venezuelan Model, Jose Alberto Ramirez Leon
Journal of Dispute Resolution
This paper argues that Venezuelan society would benefit from further development of ADR. Part II will provide an overview of the main problems affecting the Venezuelan judiciary, part III will provide a background of ADR in the country, part IV will identify the main challenges the field has to overcome, part V will propose a different approach, and part VI will present the conclusion.
Everybody Loves Arbitration: The Second Circuit Sets Pro-Arbitration Precedent In International Commercial Arbitration Cases, Jasen Matyas
Everybody Loves Arbitration: The Second Circuit Sets Pro-Arbitration Precedent In International Commercial Arbitration Cases, Jasen Matyas
Journal of Dispute Resolution
Phoenix Aktiengesellschaft v. Ecoplas, Inc. presented the Second Circuit with an unresolved question of preemption in international arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention). The court specifically addressed the issue of whether the consent-to-confirmation requirement of section 9 of the Federal Arbitration Act (FAA) conflicted with section 207 of the FAA which does not require such consent. Section 208 incorporates Chapter 1 provisions to the extent that such provisions are not in conflict with Chapter 2. Phoenix held that the two provisions were in conflict, and consent-to-confirmation is not incorporated into Chapter 2. …
Discord Behind The Table: The Internal Conflict Among Israeli Jews Concerning The Future Of Settlements In The West Bank And Gaza, Robert H. Mnookin, Ehud Eiran
Discord Behind The Table: The Internal Conflict Among Israeli Jews Concerning The Future Of Settlements In The West Bank And Gaza, Robert H. Mnookin, Ehud Eiran
Journal of Dispute Resolution
Our exclusive focus is on one of these conflicts-the profound internal rift among Israeli Jews over the Jewish settlements in the West Bank and Gaza. We are especially interested in the role of the national religious settlers and the Israeli government's response to them. These settlers lead the movement and are dominant actors in the internal conflict. The current controversies within Israel regarding Prime Minister Ariel Sharon's "unilateral initiative," which was not the product of a negotiation with Palestinians, demonstrate the importance of understanding the internal conflict within Israel and the dominant role of the leaders of the settlement movement
Response To Carrie Menkel-Meadow's Correspondences And Contradictions In International And Domestic Conflict Resolution: Lessons From General Theory And Varied Contexts, Wallace Warfield
Journal of Dispute Resolution
In this article, I would like to first spend a little time clarifying (or perhaps muddying) what is meant by "domestic" and "international" when people talk about conflicts and how they are resolved. Geographical and content-defining terms tossed about cavalierly say more about competing hierarchies and elitism than functional geopolitical designations. Next, I will suggest that part of the problem is how we locate theory in this debate: What kinds of theories lend themselves to generalization and which ones do not? And does the problem lay with the theory or the theory interpreter?
Problem-Solving Negotiation: Northern Ireland's Experience With The Women's Coalition, Jacqueline Nolan-Haley, Bronagh Hinds
Problem-Solving Negotiation: Northern Ireland's Experience With The Women's Coalition, Jacqueline Nolan-Haley, Bronagh Hinds
Journal of Dispute Resolution
Women's peacemaking skills have long empowered them as voices for reconciliation in divided societies 8 and therefore, the role of women in preventive diplomacy, conflict resolution, and post conflict reconstruction is widely advanced today. Although historically women are credited with being actively involved in peacemaking efforts at the grassroots level during periods of conflict,' ° they are not generally considered to play a significant role in formal peace negotiations.' Northern Ireland proved to be an exception.'
Correspondences And Contradictions In International And Domestic Conflict Resolution: Lessons From General Theory And Varied Contexts, Carrie Menkel-Meadow
Correspondences And Contradictions In International And Domestic Conflict Resolution: Lessons From General Theory And Varied Contexts, Carrie Menkel-Meadow
Journal of Dispute Resolution
Does the field of conflict resolution have any broadly applicable theories that "work" across the different domains of international and domestic conflict? Or, are contexts, participants, and resources so "domain" specific and variable that only "thick descriptions" of particular contexts will do? These are important questions which have been plaguing me in this depressing time for conflict resolution professionals, from September 11, 2001 (9/11), to the war against Iraq. Have we learned anything about conflict resolution that really does improve our ability to describe, predict, and act to reduce unnecessary and harmful conflict? These are the questions I want to …
Taking Dispute Resolution Theory Seriously At Home And Abroad: Prospects And Limitations, Bryant G. Garth
Taking Dispute Resolution Theory Seriously At Home And Abroad: Prospects And Limitations, Bryant G. Garth
Journal of Dispute Resolution
Carrie Menkel-Meadow's splendid discussion of dispute resolution theory operates at several levels.' One level involves a questioning of the international applicability of U.S. dispute resolution theory. She shows that our theory is in many respects parochial-not necessarily capable of explaining or even contributing to shaping dispute resolution behavior outside the United States. For the theory to make any claim to universality, she suggests, it must take into account very different settings and perhaps even develop counter models applicable to some places but not others. A more context sensitive theory, she argues, can move us beyond concepts and approaches uncritically derived …