Law Commons^™

Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty

Benjamin C McCarty

The drafters of the 1958 New York Convention intended Article V(2)(b) to be interpreted narrowly, and while most pro-arbitration national courts do maintain narrowly defined areas of public policy that are sufficient for refusal of the recognition and enforcement of a foreign arbitral award, this is not always the case. Developing states and jurisdictions that maintain corrupt or inefficient judicial systems have shown a greater willingness to invoke the public policy exception for a broader, amorphous variety of reasons. This phenomenon has created a sense of unpredictability among international investors, arbitrators, and business executives as to the amount of deference …

Designing Emotional And Psychological Support Into Truth And Reconciliation Commissions, Verlyn F. Francis Ms.

Verlyn F. Francis Ms.

Truth and Reconciliation Commissions are a dispute resolution mechanism used to attempt to reunite countries and states after internal conflicts and civil wars. A large component of this transitional justice process involves truth-telling by perpetrators and victims. The ultimate goal is reconciliation of the parties within the unified state.

Using the example of the South African Truth and Reconciliation Commission, this paper argues that successful reconciliation depends on the design of the process. It is important for the designer to balance individual and institutional interests and to ensure that all stakeholders are at the design table. Since the truth-telling in …

The Quest For A New Generation Of Labor Chapter In The Ttip, Michele Faioli

Michele Faioli

The TTIP (Transatlantic Trade and Investment Partnership Agreement) may be key for the EU-US forthcoming vision of labor and industrial relations. More in general, it may be key for idea of a possible common Western labor legal system. The TTIP may be turned into a occasion to ground a new generation of labor chapters in investment/partnership treaties. In line with preliminary outputs, a practical proposal is introduced. This essay is also aimed at analyzing, under a critical legal approach, why, to what extent and how the TTIP labor chapter may be set up. By means of a de-constructive method in …

The 2012 Saudi Arbitration Law: A Comparative Examination Of The Law And Its Effect On Arbitration In Saudi Arabia, Faris K. Nesheiwat, Ali Khasawneh

Ferris K Nesheiwat

A major concern for any outside investor in the Middle East's largest economy is that arbitration in Saudi Arabia is notoriously complicated, time-consuming, and prone to interference by the local courts, while arbitral awards have often faced difficulties in being enforced. A new Saudi Arbitration Law was issued by Royal Decree No. M/34 on April 16th, 20124 (the “New Law”), which came into force on 9 July 2012. The New Law, which is covered in 58 Articles, is intended to alleviate many of the shortcomings of the Saudi Arbitration Law of 1983 (the “Old Law”) and strengthen investors' confidence in …

Reviewing Arbitration Awards For Competition Law Violations: A Playbook For Courts Implementing The New York Convention, William Schubert

William Schubert

This article discusses the risk that international arbitration awards violating national competition laws will be enforced without having received reasonable scrutiny either during arbitration or in the national courts.

The risk that competition law violations may be authorized under the guise of enforceable arbitration awards is real, and it is a major policy problem. It is quite easy, for example, to use the international arbitration framework to enforce agreements that authorize anticompetitive activity among competitors in jurisdictions unrelated to the arbitral award (i.e., without power to review it). The problem is that competition law violations in jurisdictions unrelated to the …

Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Julian Ku, Roger Alford, Bei Xiao

Julian Ku

This Article represents the most recent comprehensive effort to assess China’s record in the enforcement of arbitration awards issued outside of China. This Article fills two gaps in academic literature on China’s treatment of foreign arbitral awards. First, unlike studies that rely mainly on anecdotal evidence, this study reviews and analyzes the reasoning of leading Chinese judicial opinions interpreting and applying China’s obligations under the New York Convention. Second, unlike prior empirical studies of Chinese courts’ enforcement rates, this study also surveys global arbitration practitioners to find out information about their experiences enforcing foreign arbitral awards in China. The Article …

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

Sports Scandals From The Top-Down: Comparative Analysis Of Management, Owner, And Athlete Discipline In The Nfl & Nba, Jaimie K. Mcfarlin, Joshua S.E. Lee

Jaimie K. McFarlin

This article serves to discuss the current landscape of professional sports discipline and commissioner power in the NFL & NBA, specifically understanding the discipline of management and ownership in the major leagues as compared to player discipline when franchise ownership interests and commissioner power conflict. Furthermore, these particular events illuminate the differences between discipline in professional sports and non-sports contexts.

L'Avvocato-Arbitro Nell'art. 61 Del Nuovo Codice Deontologico Forense, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

Regulating Mediators, Art Hinshaw

Art Hinshaw

Currently consumers engage mediators on a caveat emptor basis. The regulatory scheme for mediators is, at best, a disjointed patchwork of organizations that make mediation referrals which allows unscrupulous mediators to exploit consumers and hide in the system’s holes. One egregious example of abuse comes from Gary J. Karpin, a disbarred lawyer turned divorce mediator, who is believed to have used the mediation process to con hundreds of people into giving him an estimated $1 million before taking up residence in prison. His con was so successful in part because there was no natural place for his victims to turn …

The Implications Of The Icsid Convention, The Resurrection Of The ‘International Minimum Standard’ And The Theory Of Internationalization Of State Contracts In Investment Treaty Arbitration., Felix O. Okpe

Felix O. Okpe

No abstract provided.

Take It Or Leave It: Unconscionability Of Mandatory Pre-Dispute Arbitration Agreements In The Securities Industry, William Alan Nelson Ii

William Alan Nelson II

The pervasive use of mandatory pre-dispute arbitration agreements in the securities industry is a relatively new phenomenon. However, research reflects that an overwhelming majority of retail brokerage and investment advisory agreements include language requiring that all disputes between the customer and the broker-dealer / investment adviser be resolved through arbitration – most often with Financial Industry Regulatory Authority (FINRA) Dispute Resolution. Thus, only in rare instances can an investor open either a brokerage or investment advisory account without agreeing to submit to mandatory pre-dispute arbitration.

The enclosed article is the first to focus on the fairness of mandatory pre-dispute arbitration …

Stiffing The Arbitrators: The Problem Of Nonpayment In Commercial Arbitration, Brian Farkas, Neal M. Eiseman

Brian Farkas

Commercial arbitration is a creature of contract; the parties are there because they choose to be, either including an arbitration clause in their written agreement or, after a dispute developed, electing to avoid litigation all together. Arbitration also comes with an up-front cost non-existent in litigation: the arbitrators. Taxpayers pay for their state and federal judges, but the parties themselves pay for their arbitrators. But what happens if one party refuses (or is otherwise unable) to pay the arbitrator? If the arbitrator then refuses to proceed, as is likely, should the dispute revert to court, in derogation of the prior …

Arbitraje De Construcción: Aspectos Principales De Las Distintas Modalidades De Contratos De Construcción, Eric Franco Regjo

Eric Franco

No abstract provided.

A Gateway Question Of Arbitrability: The Ambiguity Of Article Ii Of The New York Convention On The Recognition And Enforcement Of Foreign Arbitral Awards Of 1958, John Ja Burke

John JA Burke

This article addresses, a well established but unsettled, gateway question of International Commercial Arbitration: who, national courts or arbitral tribunals, has primary competence to decide whether parties have entered into an internationally cognizable arbitration agreement. The flip side of this question implicates the doctrine of Kompetenz/Kompetenz. The uncertainty, for both issues, stems from the legal status accorded to Article (2)(3) of the New York Convention on the recognition and enforcement of foreign arbitral awards of 1958 [1958 NYC or Convention]. Article (2)(3) obliges Courts of a Contracting State to refer parties to arbitration provided two conditions precedent are met thereby …

Enforcing Global Law: International Arbitration And Informal Regulatory Instruments, Katia Fach Gómez

katia fach gómez

This paper starts from the assumption that international arbitration easily fits in with a pluralist conception of global law. Globalization has created new informal instruments of regulation, and arbitration is an efficient tool for enforcing them. First, the paper presents a brief analysis of the most noteworthy international initiatives in the area of transnational legal indicators. It will become clear how these indirect regulatory instruments are contributing to the creation of a new regulatory profile in the area of arbitration. Second, a number of examples will show that both commercial and investment arbitration are receptive to the multiple appearances of …