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Full-Text Articles in Law

‘Security For Costs’ Under The Icsid Regime: Does It Prevent ‘Arbitral Hit-And-Runs’ Or Does It Unduly Stifle Third-Party Funded Investors’ Due Process Rights?, Young Hye (Martina) Chun Jun 2021

‘Security For Costs’ Under The Icsid Regime: Does It Prevent ‘Arbitral Hit-And-Runs’ Or Does It Unduly Stifle Third-Party Funded Investors’ Due Process Rights?, Young Hye (Martina) Chun

Pepperdine Dispute Resolution Law Journal

This Article considers security for costs under the ICSID regime. Given that all security for costs have been ordered against third-party funded investors—with the latest decision, Unionmatex, in January 2020, this Article examines prior ICSID decisions to determine whether third-party funded investors are prejudiced when it comes to security for costs. It further addresses whether an applicant’s right to a costs award is a “protectable right” under Article 47 and concludes that it is not. Finding that “arbitral hit-and-run” is a hypothetical concern not based on empirical evidence and providing that ICSID’s new proposed rules to its Arbitration Rules will …


Contents And Masthead, Amy Jicha Jun 2021

Contents And Masthead, Amy Jicha

Pepperdine Dispute Resolution Law Journal

No abstract provided.


Private Juries Within The Arbitration Framework: A Third Path In Dispute Resolution, Lionel M. Schooler, Luke Gilman Jun 2021

Private Juries Within The Arbitration Framework: A Third Path In Dispute Resolution, Lionel M. Schooler, Luke Gilman

Pepperdine Dispute Resolution Law Journal

In the context of a global pandemic and a resulting backlog of jury trials in the United States court system, this article explores the potential for employing a private jury system within existing arbitration law to provide a third path for parties seeking an expedient resolution of disputes by juries when impediments exist to jury trial in court. After an introduction and background on the current state of the global SARS-CoV-2 pandemic and its effect on court backlogs, we outline the law applicable to private jury proceedings, including (a) whether an arbitral award predicated on a private jury determination is …


Who Bears The Cost Of An Emergency: Balancing Billing's Effects On Health Care Providers, And Solutions Through Alternative Dispute Resolution, Hayden Tavoda Jun 2021

Who Bears The Cost Of An Emergency: Balancing Billing's Effects On Health Care Providers, And Solutions Through Alternative Dispute Resolution, Hayden Tavoda

Pepperdine Dispute Resolution Law Journal

Arbitration, as well as other forms of alternative dispute resolution, provide many benefits for all parties when a dispute arises, such as faster results and less expense and time than litigation, and the potential for more qualified finders of fact on a specific topic rather than a jury of peers. In the following case note, Part II will focus on the background of different types of health insurance carriers in the United States, the Knox-Keene Act, and the California Assembly Bill 1611.20 Part III will discuss more specifically the issues that stem from balance billing through explicit cases. Part IV …


Legal Lying?, Robert Angyal, Nicholas Saady Jun 2021

Legal Lying?, Robert Angyal, Nicholas Saady

Pepperdine Dispute Resolution Law Journal

Mediation has become very common in the USA and Australia—at least partly because of court-mandated mediation initiatives. Lawyers often represent clients at mediations, so the increased use of mediation makes it important to understand how both jurisdictions regulate lawyers’ advocacy on behalf of their clients during mediation. This article comparatively analyzes how professional standards regulate the truthfulness of lawyers’ advocacy during mediation in Australia and the United States. It focuses on uniform regulation in those jurisdictions. Part One will comparatively analyze the relevant regulations in Australia and the United States, and the types of obligations contained in those regulations—for example, …


Arbitration With Government, Jack I. Garvey Jun 2021

Arbitration With Government, Jack I. Garvey

Pepperdine Dispute Resolution Law Journal

Arbitration is today increasingly dominant in the affairs of government. As a principal means of alternative dispute resolution, the utility of arbitration has brought it far beyond the confines of private law. The expanding role of arbitration is now broadly evident in agreements with governments and governmental entities at state and federal levels, and in international agreements involving governments. The question this poses for the lawyer working for government, or private parties contractually bound to arbitrate with government, is whether the adoption of arbitration for disputes involving government constitutes a fundamental shift of dynamics requiring a strategic shift in perspective …


Contents And Masthead, Amy Jicha Apr 2021

Contents And Masthead, Amy Jicha

Pepperdine Dispute Resolution Law Journal

No abstract provided.


The Legal Boundaries For Impartiality Of Idea Hearing Officers: An Update, Perry A. Zirkel Apr 2021

The Legal Boundaries For Impartiality Of Idea Hearing Officers: An Update, Perry A. Zirkel

Pepperdine Dispute Resolution Law Journal

Special education has become a significant area of litigation in the K-12 school context. The impartial hearing officer (“IHO”) is the fulcrum of the adjudicative process under the Individuals with Disabilities Act (“IDEA”). However, the IDEA only provides for two standards for impartiality while the framework of remaining standards are left—via the IDEA’s structure of “cooperative federalism”—to state laws. Ultimately, the courts serve as the chief cartographer for the legal boundaries of IDEA IHO impartiality in their interpretation, gap-filling, and application of the federal and state framework. The previous research relating at least in part to IDEA IHO impartiality is …


The Faux Pas Of Automatic Stay Under The Indian Arbitration Act, 1996 - The Hcc Dictum, Two-Cherry Doctrine, And Beyond, Sai Ramani Garimella, Gautam Mohanty Apr 2021

The Faux Pas Of Automatic Stay Under The Indian Arbitration Act, 1996 - The Hcc Dictum, Two-Cherry Doctrine, And Beyond, Sai Ramani Garimella, Gautam Mohanty

Pepperdine Dispute Resolution Law Journal

In the matter of Hindustan Construction. Co. v. Union of India, the Honorable Supreme Court of India (“SCI”) was presented with an opportunity to adjudicate upon a petition challenging the constitutional validity of Section 87 of the Arbitration and Conciliation Act of 1996 (“1996 Act”) as inserted by Section 13 of the Arbitration and Conciliation (Amendment) Act of 2019 (“2019 Act"). The legislative insertion stated that amendments made to the 1996 Act by the Arbitration and Conciliation Act of 2015 (“2015 Act”) would not apply to court proceedings arising out of, or in relation to, arbitral proceedings initiated before the …


Employment Arbitration Agreements: The Case For Ethical Standards For Dispute Resolution System Designers, Michael L. Russell Apr 2021

Employment Arbitration Agreements: The Case For Ethical Standards For Dispute Resolution System Designers, Michael L. Russell

Pepperdine Dispute Resolution Law Journal

Dispute resolution design is an emerging field, both academically and professionally. Attorneys, mediators, and arbitrators, the other roles in the alternative dispute resolution process, have codes of ethics which guide their conduct. Dispute resolution designers, however, have no such guidelines. This article uses the example of mandatory arbitration agreements in the employment context to illustrate why this lack of ethical guidelines for dispute resolutions designers is problematic. In recent years, mandatory arbitration agreements significantly impacted employment law and litigation. The two most problematic provisions that often appear in mandatory arbitration agreements in the workplace context are cost sharing provisions and …


When Accessing Justice Requires Absence From The Courthouse: Utah’S Online Dispute Resolution Program And The Impact It Will Have On Pro Se Litigants, Julianne Dardanes Apr 2021

When Accessing Justice Requires Absence From The Courthouse: Utah’S Online Dispute Resolution Program And The Impact It Will Have On Pro Se Litigants, Julianne Dardanes

Pepperdine Dispute Resolution Law Journal

According to the 2017 Justice Gap Report conducted by Congress’s non-profit Legal Services Corporation (LSC), eighty-six percent of civil legal issues involving low-income Americans received scant or no legal assistance. The number of unrepresented (“pro se”) litigants continues to rise, with low-income Americans constituting a significant portion of this population. Due to the inefficiency of socioeconomically challenged litigants appearing pro se, this article proposes implementing Utah’s court-mandated Online Dispute Resolution (ODR) program as a solution nation-wide. Utah’s ODR program for small claims is revolutionary because it is the first ODR system able to handle an entire dispute instead of only …


Taking A Shot At Mediation Is The Solution To Nba Player-Trade Demands, Jemuel Gascon Apr 2021

Taking A Shot At Mediation Is The Solution To Nba Player-Trade Demands, Jemuel Gascon

Pepperdine Dispute Resolution Law Journal

This article proposes that the upcoming CBA in 2024 should include an initial mediation process for voluntarily resolving trade demands. Part two of this article looks at the background of player-trade demands; it looks at past demands in both the NBA and other sports.37 It also explores the pros and cons about player-trade demands and how they affect the NBA.38 Part three of this article proposes that the use of mediation can tame trade demands’ negative side effects and explores the proposition of including a voluntary mediation clause for trade demands on the next CBA negotiations.39 Part four will raise …


Level The Playing Field: Advocating For The Removal Of Major League Baseball’S Prohibition On The Admissibility Of Statcast-Generated Sabermetrics As Evidence In Salary Arbitration Hearings, Christian Podest Apr 2021

Level The Playing Field: Advocating For The Removal Of Major League Baseball’S Prohibition On The Admissibility Of Statcast-Generated Sabermetrics As Evidence In Salary Arbitration Hearings, Christian Podest

Pepperdine Dispute Resolution Law Journal

This paper argues that Major League Baseball should amend its Collective Bargaining Agreement (CBA) to remove the outright ban on certain types of statistical evidence to help prove a player’s value. First, the paper briefly describes the history of the compensation system in the MLB and its evolution. Then, it details how final offer arbitration became the default mechanism for resolving compensation disputes between teams and players. The paper subsequently focuses on the Collective Bargaining Agreement’s carve-out of statistical evidence and notes the similarities and differences between Major League Baseball’s evidentiary standards governing salary arbitration hearings and the Federal Rules …


The “Fundies” Of Adr In The Nhl, Niko Tsiouvaras Apr 2021

The “Fundies” Of Adr In The Nhl, Niko Tsiouvaras

Pepperdine Dispute Resolution Law Journal

This note seeks to provide to an overview of how the fundamentals (or “fundies” in hockey circles) of ADR can be applied to the NHL’s most pressing issues. It will analyze two areas specifically: the overall CBA negotiations in the big picture and the RFA system in a narrower view. Part II will provide context of the events leading up to the current NHL landscape. It will outline the history of NHL–NHLPA relations, describe the main issues influencing the upcoming CBA negotiations, and explain the workings of the RFA system. Part III will then present and discuss proposed solutions to …


In Contracts We Trust (And No One Can Change Their Mind)! There Should Be No Special Treatment For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor Apr 2021

In Contracts We Trust (And No One Can Change Their Mind)! There Should Be No Special Treatment For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor

Pepperdine Dispute Resolution Law Journal

No abstract provided.