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Dispute Resolution and Arbitration

2003

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Articles 1 - 30 of 117

Full-Text Articles in Law

Determinantes Explícitos E Implícitos De La Deuda Externa Pública Peruana, José Manuel Martin Coronado Dec 2003

Determinantes Explícitos E Implícitos De La Deuda Externa Pública Peruana, José Manuel Martin Coronado

José-Manuel Martin Coronado

This research aims to prove that sound economic policies are nothing more that basic conditions for the foreign public debt problem. In fact, by studying the factors of public debt issues in Peru, Latin America and the emerging economies it’s clear that some implicit economic and non-economic factors have to be considered because of the social complexity and variable characteristics in emerging economies. This causes failures in economic policies assumptions, inefficiencies, distorted causality and nonrational behavior. This paper proposes, first, to perform a deep and comparative analysis of the foreign debt determinants in emerging economies, then, to allocate financial ...


Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman Dec 2003

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the ...


Decision-Making In Mediation: The New Old Grid And The New New Grid System, Leonard L. Riskin Dec 2003

Decision-Making In Mediation: The New Old Grid And The New New Grid System, Leonard L. Riskin

UF Law Faculty Publications

This Article reviews the author's previous mediator-orientation models and proposes a new system for understanding the range of mediator orientations based on substantive, procedural, and meta-procedural decision-making grids.


Kaleidoscopic Consent Decrees: School Desegregation And Prison Reform Consent Decrees After The Prison Litigation Reform Act And Freeman-Dowell, Shima Baradaran-Robison Nov 2003

Kaleidoscopic Consent Decrees: School Desegregation And Prison Reform Consent Decrees After The Prison Litigation Reform Act And Freeman-Dowell, Shima Baradaran-Robison

BYU Law Review

No abstract provided.


“All Aboard!” An Overview Of The Continuing Debate Regarding The Enforceability Of Dispute Resolution Provisions Of Filipino Seamen Employment Contracts, Richard V. Blystone Oct 2003

“All Aboard!” An Overview Of The Continuing Debate Regarding The Enforceability Of Dispute Resolution Provisions Of Filipino Seamen Employment Contracts, Richard V. Blystone

ExpressO

No abstract provided.


Appellate Mediation In Pennsylvania: Looking Back At The History And Forward To The Future, Sandra Schultz Newman, Scott E. Friedman Oct 2003

Appellate Mediation In Pennsylvania: Looking Back At The History And Forward To The Future, Sandra Schultz Newman, Scott E. Friedman

The Journal of Appellate Practice and Process

No abstract provided.


Environmental Dispute Resolution: An Anthology Of Practical Solutions, David C. Batson, Dustin P. Ordway Oct 2003

Environmental Dispute Resolution: An Anthology Of Practical Solutions, David C. Batson, Dustin P. Ordway

Buffalo Environmental Law Journal

No abstract provided.


Who Decides The Arbitrators' Jurisdiction? Separability And Competence-Competence In Transnational Perspective, John J. Barceló Iii Oct 2003

Who Decides The Arbitrators' Jurisdiction? Separability And Competence-Competence In Transnational Perspective, John J. Barceló Iii

Cornell Law Faculty Publications

No abstract provided.


Part Ii - What Would You Do - With A Taniwha At The Table?, Ian Macduff Oct 2003

Part Ii - What Would You Do - With A Taniwha At The Table?, Ian Macduff

Research Collection School Of Law

In the last issues of Negotiation Journal, the author explored the complicating factor of having a taniwha or spirit at the negotiating table in a New Zeland case. He challenged his readers to give him suggestions about how negotiators might grapple with often preplexing problems posed by the spiritual valus of their counterparts.


Let’S Get A Vision: Drafting Effective Arbitration Agreements, Laurie E. Leader, Melissa Burger Sep 2003

Let’S Get A Vision: Drafting Effective Arbitration Agreements, Laurie E. Leader, Melissa Burger

ExpressO

No abstract provided.


Expected Value Arbitration, Joshua P. Davis Sep 2003

Expected Value Arbitration, Joshua P. Davis

ExpressO

This Article proposes a new form of dispute resolution, Expected Value Arbitration or “EVA.” It would award a plaintiff the expected value of the outcome at trial or, in other words, the plaintiff would receive the amount she would recover on average if numerous courts were to decide her claim. EVA’s novel use of expected value gives it several virtues that distinguish it from trial, traditional binding arbitration, and other academic proposals for imposed compromise: first, EVA allows parties to insist on their legal rights without braving the risks of winner-take-all adjudication; second, it minimizes errors in adjudication; and ...


Mass Toxic Tort Litigation And Class Action Rule Reform In The United States, Jason L. Betts Sep 2003

Mass Toxic Tort Litigation And Class Action Rule Reform In The United States, Jason L. Betts

ExpressO

The paper advances the proposition that mass toxic tort litigation has been the predominant driver of class action rule reform in the Unites States. Through three distinct phases of proposals to reform Rule 23 of the Federal Rules of Civil Procedure, the judicial and academic attitude to the certification of mass toxic torts has influenced the reform debate in radically different ways – initially by providing the catalyst for efforts to reform Rule 23; then as a dampener against significant reforms to Rule 23 in the wake of mass toxic tort “settlement-only” classes; and ultimately as an explanation for the comparatively ...


Interpersonal Dynamics, Joshua D. Rosenberg Sep 2003

Interpersonal Dynamics, Joshua D. Rosenberg

ExpressO

This article explains the importance of relationship skills to attorneys. It explains why, despite the significance of these skills to attorneys, law schools and law firms ignore them. It then explains how these skills can be taught in law school, and how a relation al perspective can become not simply an important part of the law, but also an important part of the lives of lawyers. It develops and supports an ap proach that develops the cognitive, behavioral, perceptual and emotional skills and awareness essential to both accurate communication and productive and meaningful relationships. This approach is quite different from ...


Reingeniería De La Corte Suprema De La Nación - Una Guía De Trabajo Y Propuestas Para Mejorar Los Aspectos Organizativos, Funcionales Y De Gobierno Del Alto Tribunal, Horacio M. Lynch, Luciano Hurtado, María Clara Pujol, Et Al Sep 2003

Reingeniería De La Corte Suprema De La Nación - Una Guía De Trabajo Y Propuestas Para Mejorar Los Aspectos Organizativos, Funcionales Y De Gobierno Del Alto Tribunal, Horacio M. Lynch, Luciano Hurtado, María Clara Pujol, Et Al

Horacio M. LYNCH

Esta investigación continúa y actualiza las propuestas e investigaciones de FORES sobre la Corte Suprema, originadas en el diagnóstico elaborado en las Conferencias sobre la Reforma Judicial de 1977 y 1978, y en los posteriores estudios “REFORMAS EN LA CORTE SUPREMA”, 1987 y “DIAGNÓSTICO DE LA JUSTICIA ARGENTINA”, 1988, dirigidas por el Dr. Horacio M. Lynch. Complementa el reciente trabajo de éste “CAMBIOS EN LA CORTE SUPREMA - ENFOQUES DEL SIGLO XXI”, (LL 30Jul03 / V. ANEXO), y con otro anterior “EL RECURSO EXTRAORDINARIO POR ARBITRARIEDAD - UN DILEMA PARA LA NUEVA CORTE SUPREMA”, de 1990 (LL 1990-D- 719). Está concentrado en los ...


Mediating With An 800-Pound Gorilla: Medicare And Adr, Phyllis E. Bernard Sep 2003

Mediating With An 800-Pound Gorilla: Medicare And Adr, Phyllis E. Bernard

Washington and Lee Law Review

No abstract provided.


Summary Of Maki V. Chong, 119 Nev. Adv. Op. No. 46, Hilary Barrett Aug 2003

Summary Of Maki V. Chong, 119 Nev. Adv. Op. No. 46, Hilary Barrett

Nevada Supreme Court Summaries

Appeal from a district court order applying the statutory homestead exemption to a debtor’s real property.


Real Options In Law: (Possibly, Frivolous) Litigation And Other Applications, Peter H. Huang Aug 2003

Real Options In Law: (Possibly, Frivolous) Litigation And Other Applications, Peter H. Huang

ExpressO

This Article advances the thesis that real options are not only ubiquitous in law, but also provide novel insights about legal decision making, doctrines and rules. An introduction provides a brief a primer about financial options, real options, and real options in law. Part I of this Article develops implications of the fact that every lawsuit contains a sequence of real options for the plaintiff to unilaterally abandon that lawsuit. Part II of this Article appraises the limitations of game-theoretic analysis of the abandonment options embedded in litigation and some responses to such limitations. Part III of this Article illustrates ...


Correspondences And Contradictions In International And Domestic Conflict Resolution: Lessons From General Theory And Varied Contexts, Carrie Menkel-Meadow Jul 2003

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 ...


General Theory On Disputes And Conflicts, A, Raymond Shonholtz Jul 2003

General Theory On Disputes And Conflicts, A, Raymond Shonholtz

Journal of Dispute Resolution

In response to Carrie Menkel-Meadow's challenge to articulate and define a general theory of conflict management that is universally applicable regardless of context or domain,' the following General Theory and methodologies are put forth. The relational context that Menkel-Meadow offers between domestic and international is not the applicable construct for the formation of a general theory. Instead, the relevant frame is between non-democratic and democratic political systems and the difference between the concepts of conflict and dispute and their attending institutional mechanisms. Menkel-Meadow's analysis is useful in subdefining the issues in the vast foliage of conflict resolution and ...


Response To Carrie Menkel-Meadow's Correspondences And Contradictions In International And Domestic Conflict Resolution: Lessons From General Theory And Varied Contexts, Wallace Warfield Jul 2003

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?


Evaluation Dispute Resolution Under Uncertainty: An Empirical Look At Bayes' Theorem And The Expected Value Of Perfect Information, Gregory Todd Jones, Douglas H. Yarn Jul 2003

Evaluation Dispute Resolution Under Uncertainty: An Empirical Look At Bayes' Theorem And The Expected Value Of Perfect Information, Gregory Todd Jones, Douglas H. Yarn

Journal of Dispute Resolution

To begin, we review a standard model of litigation decision-making in Section I and propose an extension of this model to include ex post evaluative dispute resolution in Section II. Next, in Section III, we review the analytical concept of the expected value of perfect information as a means of placing a theoretical rational maximum on the value of the information provided by evaluative dispute resolution processes. In Section IV, we review Bayes' theorem and propose this as a rational benchmark for the integration of new information with previously existing subjective probabilities. In Section V, we offer a formal statement ...


Is State Law Looking For Trouble: The Federal Arbitration Act Flexes Its Preemptive Muscle, Robert Hollis, Sarah E. Kerner, Alexa Irene Pearson, Ryan G. Vacca Jul 2003

Is State Law Looking For Trouble: The Federal Arbitration Act Flexes Its Preemptive Muscle, Robert Hollis, Sarah E. Kerner, Alexa Irene Pearson, Ryan G. Vacca

Journal of Dispute Resolution

This article begins with an overview of the preemption concept as it affects the American legal system. The source of preemption power is revealed and the most common forms of preemption are introduced. Next, the article discusses preemption and its interaction with the Federal Arbitration Act (FAA). The discussion begins with a chronological view of the cases that have defined the effects the FAA has on arbitration agreements via its preemption power and ends with a summary of the current state of the law.


Use Of Neutral Fact-Finding To Preserve Exclusive Rights And Uphold The Disclosure Purpose Of The Patent System, Brian Panka Jul 2003

Use Of Neutral Fact-Finding To Preserve Exclusive Rights And Uphold The Disclosure Purpose Of The Patent System, Brian Panka

Journal of Dispute Resolution

This comment proposes the use of neutral fact-finding as a precursor to litigation of patent disputes. Section II begins with a brief introduction to the concept of patents and the system used in the United States for granting and protecting exclusive rights associated with patent grants. Then, Section III discusses traditional ADR processes available to resolve patent disputes and sets forth reasons those processes are not widely used. Finally, Section IV offers neutral factfinding as a solution to both litigation and traditional ADR process concerns with respect to resolving patent disputes


Applying The Eligibility Rule In Securities Arbitration: Resolving Circuit Court Conflict Regarding The Proper Role Of Arbitrators And Courts - Howsam V. Dean Witter Reynolds, Inc., James D. Hughes Jul 2003

Applying The Eligibility Rule In Securities Arbitration: Resolving Circuit Court Conflict Regarding The Proper Role Of Arbitrators And Courts - Howsam V. Dean Witter Reynolds, Inc., James D. Hughes

Journal of Dispute Resolution

In Howsam v. Dean Witter Reynolds, Inc., the United States Supreme Court reviewed a Tenth Circuit holding that the eligibility rule presented a question of arbitrability, and was thus for the court to decide. Reversing, the Supreme Court held that the arbitrator, not a court, should apply the time limit rule. The Court's decision resolves the split among the circuit courts in addition to allowing arbitration clauses in securities firms' client agreements to serve their purpose of providing an efficient and less costly method of litigating disputes relating to investment accounts, ultimately increasing investor confidence in the securities industry.


Context And Pretext In Conflict Resolution, Kevin Avruch Jul 2003

Context And Pretext In Conflict Resolution, Kevin Avruch

Journal of Dispute Resolution

In this essay, I want to reflect on some of the problems raised by context and pretext from a different angle. I want to first consider some aspects of the varied contexts in which conflict resolution and alternative dispute resolution (ADR) developed in the United States, particularly in the academy. Historically, there have been some differences between the two, partly evident in the different meanings of the notion of "dispute" adopted by theorists and practitioners. I then want to examine some of the underlying pretexts for doing this work, and some possible consequences-especially as we more frequently engage in the ...


Context, Yes - And Theory, Yes, Morton Deutsch Jul 2003

Context, Yes - And Theory, Yes, Morton Deutsch

Journal of Dispute Resolution

I admire Carrie Menkel-Meadow's article very much.' It reveals her deep and broad knowledge of the field of conflict resolution. It also represents an important and valid emphasis on the necessity of a rich knowledge of specific contexts for applied work in those contexts. However, the article implicitly constructs a false opposition between contextual knowledge and theoretical knowledge; in reality, both are needed. I understand that "practitioners" and "theorists" commonly misunderstand one another because of their different orientations and social roles. In this article, I will discuss these differences and then briefly consider the integration of theory and practice.


Taking Dispute Resolution Theory Seriously At Home And Abroad: Prospects And Limitations, Bryant G. Garth Jul 2003

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 ...


Problem-Solving Negotiation: Northern Ireland's Experience With The Women's Coalition, Jacqueline Nolan-Haley, Bronagh Hinds Jul 2003

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.'


State Legislative Update, Mark G. Boyko Jul 2003

State Legislative Update, Mark G. Boyko

Journal of Dispute Resolution

This bill would have prevented employers from requiring employees to arbitrate disputes arising under the Fair Employment and Housing Act (FEHA). In doing so, it would have changed the established law in California that written agreements to arbitrate disputes are valid and enforceable. Specifically, this bill would have invalidated arbitration agreements between employers and employees if the employer required the employee to sign the agreement as a condition of employment. A.B. 1715 would have applied to employers with five or more employees.


Adr Clause By Any Other Name Might Smell As Sweet: England's High Court Of Justice Queens Bench Attempts And Fails To Define What Is Not An Enforceable Adr Clause - Cable 7 & (And) Wireless Plc V. Ibm United Kingdom Ltd, An, Alyson Carrel Jul 2003

Adr Clause By Any Other Name Might Smell As Sweet: England's High Court Of Justice Queens Bench Attempts And Fails To Define What Is Not An Enforceable Adr Clause - Cable 7 & (And) Wireless Plc V. Ibm United Kingdom Ltd, An, Alyson Carrel

Journal of Dispute Resolution

The High Court of Justice Queens Bench Division in England issued a ruling that provides sweeping support for the use of Alternative Dispute Resolution (ADR) in private pre-dispute contract clauses.' While this support might seem to aid in developing the growing ADR movement in England, the judge may have put the cart before the horse by enforcing a non-descript and broad ADR contract clause that lacks the specificity needed to ensure a fair outcome. This decision could be detrimental for disputing parties and the future of the ADR movement itself.