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Full-Text Articles in Law
Mass Torts: Dispute Resolution In France And The United States--The Vioxx And Mediator Cases Compared, Fred Einbinder Mr.
Mass Torts: Dispute Resolution In France And The United States--The Vioxx And Mediator Cases Compared, Fred Einbinder Mr.
Washington International Law Journal
Dispute resolution in legal systems has largely been designed for handling issues between small groups of individuals or organizations. Obtaining legal redress for those injured by mass torts and using the law as a means to prevent future occurrences has presented challenges for the development of effective dispute resolution mechanisms to obtain relief for plaintiffs and deter future tortfeasors. A comparison of French and American mass tort law and practice offers a fertile field for useful comparative study given the significant differences in approach taken by each country’s legal system. These differences derive as much from history, politics, the attitudes …
The Nexus Of Access To Information, Good Governance, And Investment Negotiation, Mahmoud Elsaman
The Nexus Of Access To Information, Good Governance, And Investment Negotiation, Mahmoud Elsaman
Washington International Law Journal
One advantage of alternative dispute resolution mechanisms is the confidentiality that they provide. Negotiations preceding and during dispute resolution proceedings are no exception to the rule of privacy. However, when governments are involved in negotiations, confidentiality may contradict the free access to information as a fundamental human right that plays a significant role in sustaining good governance by promoting transparency and government accountability. While there are escalating efforts to enhance the right to access information related to investment arbitration proceedings, not all investment disputes are settled through investment arbitration. A significant number of investment disputes are settled directly through investment …
Rethinking Adjudicative Jurisdiction In International Law, Satya T. Mouland
Rethinking Adjudicative Jurisdiction In International Law, Satya T. Mouland
Washington International Law Journal
The contribution of national courts to international law has long been doubted in the international law literature. As an aspect of the state’s power to prescribe, courts have been conceived as organs that merely apply the state’s laws, which may give effect to an international law norm. According to this conception, national courts merely apply and operate within the state’s national legal system and rarely have a direct contribution to international law. However, in enforcement proceedings for international arbitral awards, arising at the intersection between the law of state immunity and the law governing the enforcement of arbitral awards, a …
Hybrid Dispute Resolution Beyond The Belt And Road: Toward A New Design Of Chinese Arb-Med(-Arb) And Its Global Implications, Weixia Gu
Washington International Law Journal
Arb-med is a form of hybrid dispute resolution that combines an adjudicative approach (arbitration) with a non-adjudicative approach (mediation). Dispute resolution clauses requiring arb-med will assume a popular role in resolving disputes that arise under China’s Belt and Road Initiative. This article argues that China should regulate arb-med in a way to reconcile local practices (mediation) with international expectations (arbitration) in context of the BRI. As an economic bloc proposed by China, the BRI development has the potential to promote dispute resolution means with Chinese characteristics such as arb-med. Global comparative study of leading arbitration jurisdictions in the East and …
Criminal Liability Of Arbitrators In China: Analysis And Proposals For Reform, Duan Xiaosong
Criminal Liability Of Arbitrators In China: Analysis And Proposals For Reform, Duan Xiaosong
Washington International Law Journal
This article is prompted by a Chinese criminal provision governing the impartiality of arbitration. The goals of the article are to critically examine the criminal statute created by the provision and to put forward some proposals for reform, which can be employed to resolve the tension that exists between arbitrator impartiality and deference to arbitration. Although the provision appears to eliminate the abuse of arbitral power, it may raise more questions than it resolves. This article explores the problems and undertakes a comparative analysis of the corresponding United States provision as well as an analysis of some cultural and traditional …
Alternative Dispute Resolution Design In Financial Markets—Some More Equal Than Others: Hong Kong's Proposed Financial Dispute Resolution Center In The Context Of The Experience In The United Kingdom, United States, Australia, And Singapore, Shahla F. Ali, Antonio Da Roza
Alternative Dispute Resolution Design In Financial Markets—Some More Equal Than Others: Hong Kong's Proposed Financial Dispute Resolution Center In The Context Of The Experience In The United Kingdom, United States, Australia, And Singapore, Shahla F. Ali, Antonio Da Roza
Washington International Law Journal
Systems of financial dispute resolution currently operate in most major financial centers throughout the world. As such systems expand and develop to address a growing number of finance-related disputes, they must inevitably address the question of their role and function in financial market regulation. Such questions are rooted in the larger socio-legal dispute processing debate examining how institutional dispute resolution mechanisms effectively regulate the repeat player knowledge/power gap through appropriate policies and procedures. Using the example of Hong Kong in comparison with financial dispute resolution models currently in existence in the United Kingdom, Australia, Singapore, and the United States, this …
Barricades And Checkered Flags: An Empirical Examination Of The Perceptions Of Roadblocks And Facilitators Of Settlement Among Arbitration Practitioners In East Asia And The West, Shahlaw F. Ali
Washington International Law Journal
Contemporary research on roadblocks and facilitators of settlement has thus far been framed by standard economic modeling and distributive bargaining theories. Each of these frameworks provides helpful insights into those elements that assist or hinder the settlement process. However, each of these models has thus far not examined how particular roadblocks and facilitators of settlement operate in the context of international commercial arbitration proceedings from a comparative cross-cultural perspective. How diverse regions approach roadblocks and facilitators of settlement in the context of the integration of global markets is a new arena for research and practice. To date, most research on …
Tipping The Scale To Bring A Balanced Approach: Evidence Disclosure In Chinese International Arbitration, Bryant Yuan Fu Yang, Diane Chen Dai
Tipping The Scale To Bring A Balanced Approach: Evidence Disclosure In Chinese International Arbitration, Bryant Yuan Fu Yang, Diane Chen Dai
Washington International Law Journal
Due to the ever-increasing trade between China and the rest of the world, commercial disputes have risen dramatically. Many foreign companies choose to resolve these disputes through arbitration to circumvent the Chinese courts and to retain more autonomy and control. Arbitration itself can also be a problem because rules and laws differ, depending on the jurisdiction and the institution involved. Under China’s civil law tradition, arbitrators are restricted in their ability to force parties to disclose evidence that may be detrimental to their case. Additionally, arbitrators have no authority to obtain evidence from uncooperative third parties. This Article seeks to …
Extending The Reach Of The Chinese Labor Law: How Does The Supreme People's Court's 2006 Interpretation Transform Labor Dispute Resolution, Jill E. Monnin
Extending The Reach Of The Chinese Labor Law: How Does The Supreme People's Court's 2006 Interpretation Transform Labor Dispute Resolution, Jill E. Monnin
Washington International Law Journal
Chinese workers are taking advantage of the dispute resolution tools that legal reform has provided in the past decade, including mediation, arbitration, and litigation. Despite a history of resolving disputes through informal mediation, more and more workers are relying on the new pathways of arbitration and civil suits in local courts. The 1993 Regulations on the Resolution of Enterprise Labor Disputes and the 1994 Labor Law facilitated workers’ access to formal legal forums. Then, in 2006, a Supreme People’s Court (“SPC”) interpretation made a number of important changes to the application of the Labor Law and workers’ access to dispute …
Judicial Intervention In International Arbitration: A Comparative Study Of The Scope Of The New York Convention In U.S. And Chinese Courts, Jian Zhou
Washington International Law Journal
The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards has been praised as one of the most efficient and powerful multilateral legal instruments in promoting international commercial arbitration. The implementation of the Convention, however, depends heavily on the domestic legal mechanisms of contracting states. By strategically adjusting its scope, local courts may expand or limit the benefits of the Convention in a significant way. The comparison between the practices of United States and Chinese courts present two extreme examples of this scope issue. There is considerable room to improve the domestic implementation of the Convention in …
China International Economic Trade Arbitration Commission In 2006: New Rules, Same Results?, Benjamin O. Kostrzewa
China International Economic Trade Arbitration Commission In 2006: New Rules, Same Results?, Benjamin O. Kostrzewa
Washington International Law Journal
In May of 2005, the China International Economic Trade Arbitration Commission (“CIETAC”) was updated with new rules designed to bring it into conformity with international arbitration standards. The rules were the most recent efforts by the Chinese government to provide foreign companies with an alternative to the Chinese judiciary, which is often considered parochial, unsophisticated, and unable to handle modern business conflicts. The new rules cure many of the problems associated with arbitration in China and have created a predominantly fair and professional dispute resolution forum. Currently, CIETAC suffers more from award collection problems rather than problems in its rules …
Alternative Dispute Resolution As A Means Of Access To Justice In The Russian Federation, Elena Nosyreva, Douglas Carman, Dana Tumenova
Alternative Dispute Resolution As A Means Of Access To Justice In The Russian Federation, Elena Nosyreva, Douglas Carman, Dana Tumenova
Washington International Law Journal
This Article represents recent scholarship in Russian jurisprudence concerning the use of alternative dispute resolution procedures. It was written by a professor who is an active participant in law reform projects addressing the problems of elaborating legislation to articulate the rights and duties of parties involved in economic and other disputes. This Article covers three forms of dispute resolution—negotiations, claims-based dispute resolution, and mediation—and identifies characteristics of these procedures that are peculiar to the Russian context. By reviewing the forms of conflict resolution employed in Soviet-era command economy and exploring the contours of contemporary Russian "legal culture," the Article attempts …
International Judicial Practice And The Written Form Requirement For International Arbitration Agreements, Jing Wang
Washington International Law Journal
The requirement that international commercial arbitration agreements must be made in writing is well accepted in most countries and has become a uniform practice in international commercial arbitration law. This is due in large part to the widespread acceptance of the Convention on Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention"). Article II (1) provides that "each Contracting State shall recognize an agreement in writing." The term "agreement in writing" is defined in Article 11 (2) of the Convention as "an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an …
Arbitration Fails To Reduce Foreign Investors' Risk In China, Charles Kenworthey Harer
Arbitration Fails To Reduce Foreign Investors' Risk In China, Charles Kenworthey Harer
Washington International Law Journal
Arbitration is often perceived as a fair and efficient method of reducing risk associated with business transactions and investments. In China, Arbitration is constrained by statute and local protectionism such that arbitration can fail to live up to the expectations of foreign investors. Arbitration in China divides all disputes into domestic or foreign-related disputes, with different procedures for each, and different standards for enforcement and judicial review of those awards. Local protectionism presents a substantial risk to foreign parties involved in arbitration. A general lack of expertise in foreign-related disputes law, and difficulty in enforcing arbitration awards in favor of …