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Articles 1 - 30 of 65
Full-Text Articles in Law
Economic Sanctions And Article V(2)(B) Of The New York Convention: A Touchy Interaction Exacerbated By The Ukraine-Russia Conflict, Alberto Pomari
Economic Sanctions And Article V(2)(B) Of The New York Convention: A Touchy Interaction Exacerbated By The Ukraine-Russia Conflict, Alberto Pomari
Pepperdine Dispute Resolution Law Journal
States have deployed an unprecedented wave of unilateral sanctions in response to the Russian invasion of Ukraine. They have also escalated the political connotation of economic sanctions by aggressively implementing them extraterritorially. This exercise of lawfare, substituting economic sanctions for armed conflict, raises the question of whether to consider unilateral sanctions elements of public policy within the meaning of Article V(2)(b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This article seeks to clarify the interplay between Article V(2)(b) and economic sanctions. Explaining the two different approaches that domestic courts implement worldwide, recent court …
Restricting Double-Hatting To Safeguard International Arbitrations, Yasaschandra Devarakonda
Restricting Double-Hatting To Safeguard International Arbitrations, Yasaschandra Devarakonda
Pepperdine Dispute Resolution Law Journal
Double-hatting is when an individual plays the dual role of an arbitrator and a legal counsel—a concept first introduced by Professor P. Sands during an IBA conference in 2009. While it hampers the credibility of the arbitral process, its proponents oppose a complete prohibition reflecting on its benefits. The author hypothesizes that this issue has been inadequately addressed in international commercial arbitrations in juxtaposition to international investment arbitrations. Supporting this, the author introduces the concept, tracing its judicial landscape and scholarly discourse in investment arbitrations highlighting the need to adopt a similar approach in commercial arbitrations. Thereafter, the definition of …
‘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
‘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 …
The Use Of Alternative Dispute Resolution To Reduce The Perception Of Partiality In The Courts, In Order To Encourage International Entrepreneurship In Countries With National Ownership Requirements, Daniela Romagnoli
Pepperdine Dispute Resolution Law Journal
Countries that require international entrepreneurs to have a national partner (national ownership requirements (NOR)) in order to open up a new venture within their borders, run the risk of becoming less desirable to do business in. One reason for this is that some investors and international entrepreneurs may be wary of possible conflict being solved in a court system that shows a positive bias towards its citizens. This paper looks at the experiences of five international entrepreneurs involved in small and medium-size enterprises (SMEs) in Kenya and explores how their experiences have become a warning to others who see potential …
Compelling Parties To Mediate Investor-State Disputes: No Pressure, No Diamonds?, James M. Claxton
Compelling Parties To Mediate Investor-State Disputes: No Pressure, No Diamonds?, James M. Claxton
Pepperdine Dispute Resolution Law Journal
There was nothing preordained about arbitration becoming shorthand for investor-state dispute settlement. The ICSID system was built on the assumption that disputing parties would choose conciliation to settle their disputes. Those expectations went unrealized as arbitration rose to prominence, and since that time institutions, parties, and academics have observed that facilitated negotiation could play a greater role in resolving investor-state disputes. A number of domestic court systems have made mediation part of the fabric of dispute resolution through incentives and compulsions to mediate. Drawing on this experience, this manuscript considers how obstacles to the uptake of investor-state mediation might be …
Arbitration And Mediation In Cross Border Disputes: Possibilities And Limitations, Young Hye Chun
Arbitration And Mediation In Cross Border Disputes: Possibilities And Limitations, Young Hye Chun
Pepperdine Dispute Resolution Law Journal
No abstract provided.
Consenting To Counterclaims Under The Icsid Convention, Harshad Pathak
Consenting To Counterclaims Under The Icsid Convention, Harshad Pathak
Pepperdine Dispute Resolution Law Journal
Counterclaims in investment treaty arbitration hold immense significance. Counterclaims have the potential to nullify biases and bolster the confidence of States in investment treaty arbitration. That being said, the multitude of jurisdictional hurdles faced by counterclaims under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) risk dampening the aforementioned potential. It is two of these hurdles emanating from the consensual nature of arbitration that I address herein. Part II of this article commences by analyzing the provisions of the ICSID Convention to derive the prerequisites of a valid counterclaim in investment …
Houston, We Have An Arbitration: International Arbitration’S Role In Resolving Commercial Aerospace Disputes, Carson W. Bennett
Houston, We Have An Arbitration: International Arbitration’S Role In Resolving Commercial Aerospace Disputes, Carson W. Bennett
Pepperdine Dispute Resolution Law Journal
This article explores the complimentary nature between the burgeoning private aerospace industry and international arbitration, as well as detailing how it could be advantageous to resolve these aerospace disputes in California. Part II outlines the new space race. It begins with the Ansari XPrize and follows some of the industry’s most significant developments. Part III explores the benefits of arbitration and how the characteristics of international arbitral proceedings cater to the common concerns of aerospace companies. Part IV catalogues the initiatives arbitral institutions have taken to customize an arbitration for aerospace disputes. This article argues that a specialized institution could …
The Singapore Convention On Mediation: A Framework For The Cross-Border Recognition And Enforcement Of Mediated Settlements, Timothy Schnabel
The Singapore Convention On Mediation: A Framework For The Cross-Border Recognition And Enforcement Of Mediated Settlements, Timothy Schnabel
Pepperdine Dispute Resolution Law Journal
This article attempts to provide a definitive overview of the text, structure, history, and purpose of the Singapore Convention on Mediation (also known as the United Nations Convention on International Settlement Agreements Resulting from Mediation), a new multilateral treaty developed by the U.N. Commission on International Trade Law (UNCITRAL). The Convention, scheduled to open for signature in August 2019, provides a uniform, efficient framework for the recognition and enforcement of mediated settlement agreements that resolve international, commercial disputes — akin to the framework that the 1958 New York Convention provides for arbitral awards. Unlike the other primary international organizations that …
Symposium Transcript: Pepperdine Drlj Symposium 2018, Jenna King
Symposium Transcript: Pepperdine Drlj Symposium 2018, Jenna King
Pepperdine Dispute Resolution Law Journal
No abstract provided.
Investor-State Dispute Settlement Reconceptionalized: Regulation Of Disputes, Standards And Mediation, M. R. Dahlan, Wolf Von Kumberg
Investor-State Dispute Settlement Reconceptionalized: Regulation Of Disputes, Standards And Mediation, M. R. Dahlan, Wolf Von Kumberg
Pepperdine Dispute Resolution Law Journal
This paper argues that the current criticisms of Investor-State Dispute Settlement (ISDS) are ill-informed, and attempts at reforming the system are misguided. The definition of ISDS itself has been, for a long time, limited to investment quasi-judicial bodies or at best arbitration. Analysis of the roots of the ever growing backlash reveals that the main causes for concern are politically negotiated investment treaties, an inherently biased system, lack of transparency, and inconsistent decision-making. Examination of the core reasons behind these complaints leads to the conclusion that the EU Commission’s solution to reform ISDS through a permanent court raises more issues …
The Cyprus Banking Haircut And Human Rights, The Way To Go?, Venetia Argyropoulou
The Cyprus Banking Haircut And Human Rights, The Way To Go?, Venetia Argyropoulou
Pepperdine Dispute Resolution Law Journal
The Cyprus Banking Haircut of 2013 (Cyprus Haircut or Haircut) was unprecedented and had devastating implications for investors. However, more than four years after the Cyprus Haircut of 2013, account holders and shareholders in Cyprus’ two largest banks at the time—Bank of Cyprus and Cyprus Popular Bank—still do not have any available recourse for their losses. Indeed, despite account holders having resorted to national courts in the Republic of Cyprus, the Court of Justice of the European Union (CJEU) and international tribunals, such as the International Centre for Settlement of Investment Disputes (ICSID). Despite making human rights’ claims in all …
Alternative Dispute Resolution In Africa: Is Adr The Bridge Between Traditional And Modern Dispute Resolution?, Catherine Price
Alternative Dispute Resolution In Africa: Is Adr The Bridge Between Traditional And Modern Dispute Resolution?, Catherine Price
Pepperdine Dispute Resolution Law Journal
This article advocates for using Ghana’s introduction of ADR as a model for other African countries. Like Ghana, most African countries have adopted a form of ADR based on Western nations; however, as African culture and legal systems are quite different than Western culture, modifications are necessary. Ghana’s experience shows that modern ADR can be adopted into African countries, but an understanding of the traditional mechanisms is necessary. Part II of this article provides an introduction of ADR and its historical context in Africa. Part III examines customary and modern dispute resolution. It looks at the relationship between the two …
Conceptualizing A Framework Of Institutionalized Appellate Arbitration In International Commercial Arbitration, Axay Satagopan
Conceptualizing A Framework Of Institutionalized Appellate Arbitration In International Commercial Arbitration, Axay Satagopan
Pepperdine Dispute Resolution Law Journal
The absence of the option to prefer substantive appeals from arbitral adjudication is a conspicuous systemic peculiarity of the arbitral process. While this absence has for the most part been accepted without question or resistance as being an axiomatic entailment of the arbitral process, the last two decades have witnessed an increasing amount of criticism directed at it, both from scholarship as well as the business community. The criticism has been especially emphatic, in relation to international commercial arbitrations, a sizeable proportion of which pertain to complex and high stake disputes. Moreover, there has been a concurrent increase in the …
The Applicability Of Economic Sanctions To The Merits In International Arbitration Proceedings: With A Focus On The Dynamics Between Public International Law Principles, Private International Law Rules And International Arbitration Theories, Taejoon Ahn
Pepperdine Dispute Resolution Law Journal
No abstract provided.
The Path Towards Defining “Investment” In Icsid Investor-State Arbitrations: The Open-Ended Approach, Melissa María Valdez García
The Path Towards Defining “Investment” In Icsid Investor-State Arbitrations: The Open-Ended Approach, Melissa María Valdez García
Pepperdine Dispute Resolution Law Journal
Article 25 of the International Convention on the Settlement of Investment Disputes left the notion of “investment” intentionally undefined, thus leaving its interpretation in the hands of arbitration tribunals, which has led to inconsistencies, confusion and debate regarding the true essence of what may appear as a routine concept. This article tries to explain that the proper meaning of “investment” under the Convention must be clarified not only by discussing the drafting history of the Convention, but by also examining doctrinal tendencies, key aspects of corresponding arbitration awards and customary international law and argues that arbitration tribunals should show strong …
Investor-State Dispute Settlement Reconceptionalized: Regulation Of Disputes, Standards And Mediation, M. R. Dahlan, Wolf Von Kumberg
Investor-State Dispute Settlement Reconceptionalized: Regulation Of Disputes, Standards And Mediation, M. R. Dahlan, Wolf Von Kumberg
Pepperdine Dispute Resolution Law Journal
This paper argues that the current criticisms of Investor-State Dispute Settlement (ISDS) are ill-informed, and attempts at reforming the system are misguided. The definition of ISDS itself has been, for a long time, limited to investment quasi-judicial bodies or at best arbitration. Analysis of the roots of the ever growing backlash reveals that the main causes for concern are politically negotiated investment treaties, an inherently biased system, lack of transparency, and inconsistent decision-making. Examination of the core reasons behind these complaints leads to the conclusion that the EU Commission’s solution to reform ISDS through a permanent court raises more issues …
The Importance Of Improving The Dispute Resolution Process Of Iran’S Nuclear Deal, Diba Alemi
The Importance Of Improving The Dispute Resolution Process Of Iran’S Nuclear Deal, Diba Alemi
Pepperdine Dispute Resolution Law Journal
Section I provides a brief introduction. Section II discusses the sanctions that have been imposed on Iran. Section III elaborates the worldwide effect of the Joint Comprehensive Plan of Action (“JCPOA”) agreement. Section IV discusses the dispute resolution clause in the JCPOA agreement. Section V compares other dispute resolution clauses to JCPOA’s dispute resolution clause. Section VI discusses the difficulties the developing countries face during the international dispute resolution process. Section VII explains the necessity of adding time to negotiate to the dispute resolution process of the. Lastly, section IX concludes.
Cross-Border Insolvencies: To “Universalize” Or To Arbitrate?, Young Hye (Martina) Chun
Cross-Border Insolvencies: To “Universalize” Or To Arbitrate?, Young Hye (Martina) Chun
Pepperdine Dispute Resolution Law Journal
This note makes a cost-benefit analysis of the U.S. Bankruptcy Code Chapter 15 and International Commercial Arbitration in the context of cross-border bankruptcy proceedings. Part I sets the stage by providing two opposing theoretical approaches to cross-border insolvencies: territorialism and universalism. Part II introduces the UNCITRAL’s Model Law on Cross-Border Insolvency, which is incorporated into the U.S. Bankruptcy Code Chapter 15. It presents how the Model Law has attempted to compensate for the lack of a global court by incorporating universalism. Part III demonstrates that while Chapter 15 sounds good in theory, it fails to address the very issue it …
The Need For Implementation Of A Consolidation Provision In Institutional Arbitration Rules, Ioannis Giakoumelos
The Need For Implementation Of A Consolidation Provision In Institutional Arbitration Rules, Ioannis Giakoumelos
Pepperdine Dispute Resolution Law Journal
This article deals with the question whether arbitration institutions should introduce a consolidation provision in their respective rules, and if so, under what conditions consolidation should be ordered. It stresses the general advantages and potential disadvantages which consolidation may have. It further investigates whether the parties’ interests regarding consolidation are sufficiently respected in the absence of an express consolidation rule. In this regard, it argues that interpretation of arbitration agreements can have a detrimental outcome, and therefore, the introduction of a consolidation provision in institutional rules is recommended. The article goes on to compare various consolidation provisions of different arbitration …
Book Review: Commentaries On Selected Model Investment Treaties, Jack J. Coe Jr., Ashley K. Puscas
Book Review: Commentaries On Selected Model Investment Treaties, Jack J. Coe Jr., Ashley K. Puscas
Pepperdine Dispute Resolution Law Journal
No abstract provided.
When "Yes" Means "No": Mccarran-Ferguson, The New York Convention, And The Limits Of Congressional Assent, Aaron L. Wells
When "Yes" Means "No": Mccarran-Ferguson, The New York Convention, And The Limits Of Congressional Assent, Aaron L. Wells
Pepperdine Dispute Resolution Law Journal
The article focuses on the awards and arbitration of the resolution of the international commercial disputes with respect to the cross-border contracts and agreements. The enactment of the McCarran-Ferguson Act of the U.S. was for the prevention of the general applicability of the federal legislation in the authority of the states for the purpose of regulating the insurance industry. Information on the decision of the Supreme Court of the U.S. regarding this issue is also presented.
Is There A Stare Decisis Doctrine In The Court Of Arbitration For Sport? An Analysis Of Published Awards For Anti-Doping Disputes In Track And Field, Annie Bersagel
Pepperdine Dispute Resolution Law Journal
The article presents information on the doctrine of the stare decisis under the court of arbitration for sport with respect to the awards and arbitration for the disputes on anti-doping in the sport of track and field. The jurisdiction of the commercial and the disciplinary disputes of the Olympic Games are exercised by the court of arbitration for sport. Information on the role of the doctrine of the civil law is also presented.
The Perfect Circle: Arbitration's Favors Become Its Flaws In An Era Of Nationalization And Regulation, Kimberly R. Wagner
The Perfect Circle: Arbitration's Favors Become Its Flaws In An Era Of Nationalization And Regulation, Kimberly R. Wagner
Pepperdine Dispute Resolution Law Journal
The article presents information on the evolution of international commercial arbitration and viability of alternative dispute resolution (ADR) process. It briefly discusses the importance of international commercial arbitration and several attributed reasons for its decline such as Americanization, nationalization, and overregulation. It reflects mediation as the replacement for arbitration, and compares the advantages of mediation and arbitration.
The Federal Mediation And Conciliation Service: A Partner In International Conflict Prevention, Andrea Strimling
The Federal Mediation And Conciliation Service: A Partner In International Conflict Prevention, Andrea Strimling
Pepperdine Dispute Resolution Law Journal
The Federal Mediation and Conciliation Service ("FMCS"), an independent agency of the U.S. government with over a half-century of conflict management and institutional-development experience, is a valuable resource in U.S. efforts to prevent armed conflict and build the foundations for lasting security in the U.S. and around the world. Given the urgency and complexity of this challenge, the United States should identify, support, and leverage all appropriate resources for preventive diplomacy, including short-term operational prevention and long-term structural prevention. Through its International Program, FMCS has already made important contributions to both types of prevention, drawing on three strategic assets that …
The Dispute Settlement Understanding Of The Wto Agreement: An Inadequate Mechanism For The Resolution Of International Trade Disputes, Sean P. Feeney
The Dispute Settlement Understanding Of The Wto Agreement: An Inadequate Mechanism For The Resolution Of International Trade Disputes, Sean P. Feeney
Pepperdine Dispute Resolution Law Journal
The 1994 signing of the World Trade Organization (WTO) Agreement marked the initiation of the most far-reaching and comprehensive international agreement on trade in the history of the modern world. The creation of an actual trade organization was a marked improvement over the WTO's predecessor, the 1944 GATT, which never formed an organization per se. Among the many improvements to the GATT, the WTO Agreement substantially changed the mechanism for dispute settlement whenever conflict arose between member states. This change, codified as the Dispute Settlement Understanding ("DSU"), was initially hailed as a great improvement over the GATT dispute settlement provisions. …
The Icc Prosecutor V. President Medema: Simulated Proceedings Before The International Criminal Court , Pieter H. F. Bekker, David Stoelting
The Icc Prosecutor V. President Medema: Simulated Proceedings Before The International Criminal Court , Pieter H. F. Bekker, David Stoelting
Pepperdine Dispute Resolution Law Journal
On July 18, 2000, as part of the Annual Meeting of the American Bar Association, an all star cast of American and English lawyers gathered in the Common Room of the Law Society of England and Wales in London to simulate oral argument before the International Criminal Court ("ICC"). The fictitious proceedings involved a head of state, President Luis Medema, charged with genocide, war crimes and crimes against humanity. The prosecutors and defense counsel engaged in lively oral argument before the Trial Chamber in the context of three critical issues: (1) jurisdiction of the ICC over citizens of non-state parties; …
Filling The Gap Between Morality And Jurisprudence: The Use Of Binding Arbitration To Resolve Claims Of Restitution Regarding Nazi-Stolen Art , Rebecca Keim
Pepperdine Dispute Resolution Law Journal
Recognizing the gaps in existing legislation, this article will argue that disputes arising between claimants and museums regarding the repatriation of Nazi-looted artwork should be decided by binding arbitration rather than litigation. To facilitate such arbitration, international law should support the creation of an arbitration commission, which would provide the most efficient and consistent way to resolve claims. Moreover, a neutral forum with clear rules of law and procedure capable of resolving claims would not only be more fair to claimants, but also to museums and personal collectors. This article will first discuss the severity and magnitude of Nazi looting …
Renegotiating Third World Debt , Arash S. Arabi
Renegotiating Third World Debt , Arash S. Arabi
Pepperdine Dispute Resolution Law Journal
The debt crisis facing the Third World is one so severe that it threatens to shatter the economy of countless nations and leaves the future of their lenders in doubt. The only viable solution is to come up with an "alternative" method of dispute resolution to deal with the debt crisis - one that is a cross between arbitration and mediation. A disinterested body should be created to recover some, or if possible, all of the outstanding loans owed to financial institutions, while alleviating the extreme hardships the debt and current debt repayment methods have inflicted. It should be noted, …
Reframing The Dilemma Of Contractually Expanded Judicial Review: Arbitral Appeal Vs. Vacatur , Eric Van Ginkel
Reframing The Dilemma Of Contractually Expanded Judicial Review: Arbitral Appeal Vs. Vacatur , Eric Van Ginkel
Pepperdine Dispute Resolution Law Journal
The Federal Arbitration Act ("FAA") of 1925 was created to ensure enforceability of agreements to arbitrate. The FAA is the centerpiece of the federal arbitration policy as construed by the Supreme Court. Section 10(a) FAA enumerates grounds on which an arbitral award can be set aside. The central issue discussed herein is whether parties can agree by contract to allow one of the parties to initiate review of the arbitral award by a court that would otherwise have jurisdiction over those parties, or whether the court's powers are somehow limited to the grounds for vacatur enumerated in Section 10(a) FAA. …