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Articles 1 - 30 of 43
Full-Text Articles in Law
Empirically Evaluating Claims About Investment Treaty Arbitration, Susan Franck
Empirically Evaluating Claims About Investment Treaty Arbitration, Susan Franck
Articles in Law Reviews & Other Academic Journals
With the blossoming of empirical legal scholarship, there is an increased appreciation for the insights it offers issues of international importance. One area that can benefit from such inquiry is the resolution of disputes from investment treaties, which affects international relations, implicates international legality of domestic government conduct, and puts millions of taxpayer dollars at risk. While suggesting there has been a "litigation explosion", commentators make untested assertions about investment treaty disputes. Little empirical work transparently explores this area, however. As the first research that explains its methodology and results, this article is a modest attempt to evaluate claims about …
El Árbitro ¿Autoridad?, Ana E. Fierro Ferraez
El Árbitro ¿Autoridad?, Ana E. Fierro Ferraez
Ana E. Fierro Ferraez
No abstract provided.
Whither Arbitration, Peter B. Rutledge
Whither Arbitration, Peter B. Rutledge
Peter B. Rutledge
Over the past several decades, scholars and policymakers have debated the future of arbitration in the United States. Those debates have taken on new significance in the present Congress, which is considering a variety of reform proposals. Among the most widely watched are ones that would prohibit the enforcement of predispute arbitration clauses in employment, consumer and franchise contracts. Reviewing the available empirical literature, the paper explains how many of the assumptions driving the arbitration reform debate are unproven at best and flatly wrong at worst. It then tries to sketch out the economic impact of any move by Congress …
Process Purity And Innovation In Dispute Resolution: A Response To Professors Stempel, Cole, And Drahozal, Richard C. Reuben
Process Purity And Innovation In Dispute Resolution: A Response To Professors Stempel, Cole, And Drahozal, Richard C. Reuben
Faculty Publications
This article uses a "process characteristics and values" approach to make the case against displacing arbitration finality with substantive judicial review. It responds to a trio of articles in a forthcoming Nevada Law Review symposium on whether and how the Federal Arbitration Act should be amended. In one article, Nevada Law Professor Jeffrey Stempel contends all arbitration awards should be subject to substantive judicial review similar to that of public trial courts. In a second article, Ohio State Professor Sarah Cole argues that substantive review should generally be permitted when the parties agree to it by contract, an issue now …
The Arrival Of The "Have-Nots" In International Arbitration, Catherine A. Rogers
The Arrival Of The "Have-Nots" In International Arbitration, Catherine A. Rogers
Nevada Law Journal
No abstract provided.
Consideration Of 'Contracting Culture' In Enforcing Arbitration Provisions, Amy J. Schmitz
Consideration Of 'Contracting Culture' In Enforcing Arbitration Provisions, Amy J. Schmitz
Faculty Publications
The Federal Arbitration Act mandates strict and uniform enforcement of standardized pre-dispute arbitration provisions. This may not be proper, however, in light of the importance of context with respect to these provisions. This Article therefore seeks to remind courts of the importance of exchange context by proposing a "contracting culture" continuum for enforcing these arbitration provisions that acknowledges the impacts of these provisions in a particular communal context. "Contracting culture" encompasses economic and non-economic relational factors that impact dispute resolution agreements, but go beyond common conceptions of "culture" focused on ethnicity, nationality, or religion. It also explores beyond the primary …
The Arbitration Penumbra: Arbitration Law And The Rapidly Changing Landscape Of Dispute Resolution, Thomas J. Stipanowich
The Arbitration Penumbra: Arbitration Law And The Rapidly Changing Landscape Of Dispute Resolution, Thomas J. Stipanowich
Nevada Law Journal
No abstract provided.
Odious, Illegitimate, Illegal, Or Legal Debts—What Difference Does It Make For International Chapter 9 Debt Arbitration?, Kunibert Raffer
Odious, Illegitimate, Illegal, Or Legal Debts—What Difference Does It Make For International Chapter 9 Debt Arbitration?, Kunibert Raffer
Law and Contemporary Problems
Once upon a time, sovereign debts were just that-debts or the entitlement to be repaid fully, including interest. During the 1970s it was thought unnecessary to make any distinctions between debts, based on the assumption that sovereigns might possibly become illiquid, but could never become insolvent. Commercial banks disregarded the most elementary rules of prudent banking, including their duty of due diligence as lenders, laboring on the assumption that whatever flowed into developing countries would eventually flow back with fees and interest. Here, Raffer discusses the international dchapter nine debt arbitration.
The Conundrum Of The Piran Bay: Slovenia V. Croatia - The Case Of Maritime Delimitation, Jernej Letnar Černič, Matej Avbelj
The Conundrum Of The Piran Bay: Slovenia V. Croatia - The Case Of Maritime Delimitation, Jernej Letnar Černič, Matej Avbelj
Jernej Letnar Černič
Drawing borders between countries has historically been a very demanding task, often underpinned by deeply-rooted emotions that suppress the argumentative dialogue and reasoning and in too many cases has led to long-term general deterioration of relationships which may devolve into war. As the title suggests, the focal point of this paper will be a legal assessment or a legal prediction of the outcome of the maritime border delimitation dispute between Slovenia and Croatia in the northernmost part of the Adriatic Sea, namely in the Piran Bay. The paper will be structured into four parts. In the first part the authors …
Is Open Source Software The New Lex Mercatoria?, Fabrizio Marrella, Christopher S. Yoo
Is Open Source Software The New Lex Mercatoria?, Fabrizio Marrella, Christopher S. Yoo
All Faculty Scholarship
Early Internet scholars proclaimed that the transnational nature of the Internet rendered it inherently unregulable by conventional governments. Instead, the Internet would be governed by customs and practices established by the end user community in a manner reminiscent of the lex mercatoria, which spontaneously emerged during medieval times to resolve international trade disputes independently and autonomously from national law. Subsequent events have revealed these claims to have been overly optimistic, as national governments have evinced both the inclination and the ability to exert influence, if not outright control, over the physical infrastructure, the domain name system, and the content flowing …
Dangers Of Deference To Form Arbitration Provisions, Amy J. Schmitz
Dangers Of Deference To Form Arbitration Provisions, Amy J. Schmitz
Faculty Publications
This Article is part of my larger project exploring what I call "contracting culture," which borrows from legal realism and relational contract theory by considering contextual factors such as negotiators' relations, understandings, and values. As part of this project, I am pursuing various threads, including empirical studies of how contracting realities impact arbitration. In this Article, however, I focus on how these realities in business to consumer contracts combine with the Federal Arbitration Act and formulaic contract law to foster dangerous deference to form arbitration provisions. The Article then invites procedural reforms and offers suggestions for regulations aimed to temper …
Arbitration By Accident: The Consequence Of Unintentionally Meeting The Clear And Unmistakable Evidence Standard, Mark A. Mulchek
Arbitration By Accident: The Consequence Of Unintentionally Meeting The Clear And Unmistakable Evidence Standard, Mark A. Mulchek
Journal of Dispute Resolution
A fundamental principle of arbitration law is that parties may only be compelled to submit an issue to arbitration if they agreed to do so. The question of when an arbitrator, instead of a district court, can decide the arbitrability of an issue has been taken up by the courts in recent years. In First Options of Chicago, Inc. v. Kaplan, the Supreme Court stated that an arbitrator may decide questions of arbitrability only when the parties have "clearly and unmistakably" agreed to defer such questions to an arbitrator. Since First Options, the lower courts have attempted to define when …
Only The Rich Can Afford A Remedy: The Unconscionable Enforcement Of Arbitration Provisions Against The Indigent, Ryan M. Turley
Only The Rich Can Afford A Remedy: The Unconscionable Enforcement Of Arbitration Provisions Against The Indigent, Ryan M. Turley
Journal of Dispute Resolution
In Overstreet v. Contigroup Cos., Inc.,2 the Fifth Circuit Court of Appeals held that neither economic disadvantage nor undisclosed arbitration fees may form the basis for striking down an arbitration provision on the grounds of unconscionability.3 While the Supreme Court and the Federal Arbitration Act (FAA) expressly authorize the use of the doctrine of unconscionability to invalidate arbitration provisions, courts are sharply divided on its proper application. 4 The difficult juxtaposition of the Supreme Court's interpretation of the FAA as a "liberal federal policy favoring arbitration" and the traditional application of unconscionability as a means of policing unfair contracts has …
Application Of Due Process To Arbitration Awards Of Punitive Damages - Where Is The State Action, The, Charles Smith
Application Of Due Process To Arbitration Awards Of Punitive Damages - Where Is The State Action, The, Charles Smith
Journal of Dispute Resolution
This article will analyze why the position of the courts-no state action-is correct. Specifically, this article will take the position that the policy of finality traditionally found in arbitration law must trump any constitutional inquiries. This is because arbitration is ultimately based on the parties' agreement, which inevitably recites that the arbitrator's decision shall be final and, in any event, this finality is generally implied.
Arbitration In Argentina - The Judicial Court’S Review On The Arbitration Awards, Felipe Eduardo Zabalza, Leandro Javier Caputo
Arbitration In Argentina - The Judicial Court’S Review On The Arbitration Awards, Felipe Eduardo Zabalza, Leandro Javier Caputo
Felipe Eduardo Zabalza
The nullity recourse against an arbitration award is not aimed at challenging alleged errors in iudicandum, nor is it possible to use it to obtain elliptically a judicial revision of an adverse award, since that would imply the degeneration of arbitration, depriving it of one of its most precious benefits.
A decision in re Decathlon España S.A. vs. Bertone, Luis, handed down by the National Court of Appeals on Commercial Matters, Chamber D, stated that “the higher or lesser amount of said control depends on the same will which gave rise to arbitration: it will be of a maximum extension …
Can International Law Survive The 21st Century - Yes: With Patience, Persistence, And A Peek At The Past, Dana Zartner Falstrom
Can International Law Survive The 21st Century - Yes: With Patience, Persistence, And A Peek At The Past, Dana Zartner Falstrom
San Diego International Law Journal
With the end of the Cold War-the principal international political framework that shaped the international system since the end of WWII-an increasing number of global tensions have arisen which have brought to the fore questions about the ability of existing international law to provide a guiding framework for state behavior. Debates over the limits of state sovereignty, the appropriateness of humanitarian intervention, the justness of pre-emptive war, the definition of self-defense, the legality of replacing a government in the interests of your ideals, and how to deal with terrorism have dominated discussions around the world. Moreover, these discussions have caused …
From Face-To-Face To Screen-To-Screen: Real Hope Or True Fallacy, Philippe Gilliéron
From Face-To-Face To Screen-To-Screen: Real Hope Or True Fallacy, Philippe Gilliéron
Philippe Gilliéron
The development of e-commerce involves the implementation of effective Online Dispute Resolution (ODR) methods. While the enactment of ODR methods is made particularly easy thanks to the technological tools at disposal, their mere implementation does still not ensure their efficiency. ODR has drawn much attention in legal scholarships in recent years. Strangely enough, hardly any scholar has however focused on a key factor for the good development of ODR: differences between face-to-face and computer-mediated interactions. After having described the current state of literature related to ODR, I shall focus more specifically on these differences based upon experiments conducted in the …
Vacatur Of Arbitration Awards: The Poor Loser Problem Or Loser Pays?, Stanley A. Leasure
Vacatur Of Arbitration Awards: The Poor Loser Problem Or Loser Pays?, Stanley A. Leasure
University of Arkansas at Little Rock Law Review
In B. L. Harbert International, LLC. v. Hercules Steel Co., decided in February 2006, the Eleventh Circuit Court of Appeals took the opportunity to express its "exasperation" with the growing tendency of losing parties in arbitration disputes to take a "never-say-die attitude" in the pursuit of vacatur of arbitral decisions "without any real legal basis for doing so" and its concern for the concomitant threat to the underlying purposes of the Federal Arbitration Act (FAA).
Applying the Harbert "any real legal basis" requirement raises several concerns that can be assuaged only by courts' commitment to focus on balancing following two …
Misjudging: Implications For Dispute Resolution, Donna Shestowsky
Misjudging: Implications For Dispute Resolution, Donna Shestowsky
Nevada Law Journal
No abstract provided.
Equitable Estoppel And The Compulsion Of Arbitration, Alexandra A. Hui
Equitable Estoppel And The Compulsion Of Arbitration, Alexandra A. Hui
Vanderbilt Law Review
Freedom of contract is a longstanding principle deeply rooted in American jurisprudence, protected by the Contract Clause and by the Due Process Clauses of the Fifth and Fourteenth Amendments.' Because of the legal system's high regard for freedom of contract, parties are free to negotiate virtually all issues, thus creating rights and limiting duties and obligations to one another.
In exercising this freedom to contract, parties often negotiate an arbitration clause. These clauses, also referred to as "predispute arbitration agreements," are contractual provisions agreed to in advance of any dispute that require a party to submit any and all future …
Finding Harmony With Uncitral Model Law: Contemporary Issues In International Commercial Arbitration In India After The Arbitration And Conciliation Act Of 1996 , Sandeep S. Sood
Finding Harmony With Uncitral Model Law: Contemporary Issues In International Commercial Arbitration In India After The Arbitration And Conciliation Act Of 1996 , Sandeep S. Sood
Sandeep S. Sood, J.D.
Abstract India’s international commercial arbitration system has undergone substantial changes over the past decade with India’s sudden emergence as a global economic power. The Arbitration and Conciliation Act of 1996 was enacted in response to address extreme latency in the court system, attract foreign direct investment, and to establish India as a viable forum for international commercial arbitration. While the enactment of the 1996 Act has proven largely successful on these fronts, significant problems remain in providing interim measures of protection, enforcing and challenging arbitral awards, defining arbitral subject-matter, challenging and removing biased arbitrators. Not coincidentally, tensions remain greatest in …
Finding Harmony With Uncitral Model Law: Contemporary Issues In International Commercial Arbitration In India After The Arbitration And Conciliation Act Of 1996 , Sandeep S. Sood
Finding Harmony With Uncitral Model Law: Contemporary Issues In International Commercial Arbitration In India After The Arbitration And Conciliation Act Of 1996 , Sandeep S. Sood
Sandeep S. Sood, J.D.
India’s international commercial arbitration system has undergone substantial changes over the past decade with India’s sudden emergence as a global economic power. The Arbitration and Conciliation Act of 1996 was enacted in response to address extreme latency in the court system, attract foreign direct investment, and to establish India as a viable forum for international commercial arbitration. While the enactment of the 1996 Act has proven largely successful on these fronts, significant problems remain in providing interim measures of protection, enforcing and challenging arbitral awards, defining arbitral subject-matter, challenging and removing biased arbitrators. Not coincidentally, tensions remain greatest in areas …
Adr Gone Wild!: One State’S Experience With A Radical Trust And Estate Dispute Resolution Act, Kirsten M. Elliott
Adr Gone Wild!: One State’S Experience With A Radical Trust And Estate Dispute Resolution Act, Kirsten M. Elliott
Kirsten M Elliott
This paper explores one state’s use of a radical alternative dispute resolution act in the area of wills and trusts. While the primary focus of this paper is to explore a unique Washington law –the Trust and Estate Dispute Resolution Act (TEDRA) – it is important to note that similar, if not identical sets of statutes exist in other states. TEDRA was passed in 1999 as a means for providing for mandatory alternative dispute resolution in the area of trusts and estates, namely mediation, arbitration, or private agreement between the parties. Recently, Idaho passed a nearly identical Act and these …
Ibeto Petrochemical Industries Ltd V. M/T Beffen, 475 F. 3d 56 - Court Of Appeals, 2nd Circuit 2007, Roger J. Miner '56
Ibeto Petrochemical Industries Ltd V. M/T Beffen, 475 F. 3d 56 - Court Of Appeals, 2nd Circuit 2007, Roger J. Miner '56
Circuit Court Opinions
Plaintiff-Counter-Defendant-Appellant Ibeto Petrochemical Industries Limited ("Ibeto") appeals from an Order entered in the United States District Court for the Southern District of New York (Scheindlin, J.) in an action arising out of the contamination by seawater of a shipment of oil being carried by motor tanker. The Order granted the motions of Defendant-Appellee M/T Beffen, Her Engines, Tackles, Boiler, etc. (in rem) ("the Beffen") and Defendant-Counter-Claimant-Appellee Bryggen Shipping and Trading A/S (in personam) ("Bryggen") (collectively "defendants") to stay this action, to compel arbitration, and to enjoin an action pending in Nigeria. The Order also denied Ibeto's motion for voluntary …
Kristian V. Comcast: Another Drop In The Bucket, Or The Achilles Heel Of Arbitration Agreements Banning Class Mechanisms?, Falon M. Wrigley
Kristian V. Comcast: Another Drop In The Bucket, Or The Achilles Heel Of Arbitration Agreements Banning Class Mechanisms?, Falon M. Wrigley
Saint Louis University Public Law Review
No abstract provided.
Mcmahon Turns Twenty: The Regulation Of Fairness In Securities Arbitration, Jill I. Gross
Mcmahon Turns Twenty: The Regulation Of Fairness In Securities Arbitration, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
I believe that current regulation of securities arbitration does ensure that it is fair to investors. Part II of this Commentary explores the various sources of law, including the FAA, which could require fairness in securities arbitration. It revisits the first critical assumption of the McMahon Court, that the FAA's provisions for post-award judicial review protect investors from an unfair arbitration process. This Part demonstrates that, while the FAA does require “fundamental fairness” in arbitration, courts loosely construe that requirement and find most arbitration proceedings meet it easily. Part IIII of this Commentary explores SEC oversight of securities arbitration, particularly …
“To Boldly Go Where No One Has (Arbitrated) Before”:The Star Trek Mythos As An Heuristic Paradigm For Jurisdictional And Arbitration Issues, Antonin I. Pribetic
“To Boldly Go Where No One Has (Arbitrated) Before”:The Star Trek Mythos As An Heuristic Paradigm For Jurisdictional And Arbitration Issues, Antonin I. Pribetic
Antonin I. Pribetic
While the topic of international arbitration has failed to capture the interest of Hollywood producers or television audiences, the science fiction genre yields a serendipitous result. Using an excerpt from a Star Trek: The Next Generation episode, this brief comment analyzes the impact of law and popular culture on the issues of the rule of law, jurisdiction and international (more accurately, "intergalactic") comity within the context of bilateral and multilateral treaty obligations.
The Arrival Of The "Have-Nots" In International Arbitration, Catherine A. Rogers
The Arrival Of The "Have-Nots" In International Arbitration, Catherine A. Rogers
Journal Articles
Much has been written about the have-nots in domestic litigation and domestic arbitration, with an apparent assumption that their fate was mainly a domestic affair. In recent years, however, internet commerce has brought consumers to the international market, an increasingly globalized workforce has generated a class of international employees, and the link between international trade and human rights has revealed a host of victims. The arrival of these 'have-nots' in international arbitration means that previously latent questions about international arbitration's integrity as a system and role as a mechanism for transnational regulatory governance have been brought to the fore.
Using …
An Empirical Analysis Of Investment Treaty Awards, Susan Franck
An Empirical Analysis Of Investment Treaty Awards, Susan Franck
Articles in Law Reviews & Other Academic Journals
I. INTRODUCTION
Earlier speakers offered insights about investment law and its implications for the future of domestic administrative law and international law. To bring us full circle, I will discuss where we are today so that we can consider where we want development law to be tomorrow. In pursuit of that goal, I offer empirical data related to investment treaty arbitration. My goal today is to focus on three claims about investment treaty arbitration and consider the data's potential implications.
Does International Arbitration Need A Mandatory Rules Method?, Alexander K.A. Greenawalt
Does International Arbitration Need A Mandatory Rules Method?, Alexander K.A. Greenawalt
Elisabeth Haub School of Law Faculty Publications
The role of mandatory rules in international arbitration remains a persistent source of debate. The basic problem is a straightforward one: contractual arbitration arises as a matter of the parties’ consent, but the resolution of contractual disputes can implicate mandatory rules of law that are not waivable and are typically designed to protect broader public rights. The literature has often presented the issue in terms of conflict between the authority of the state and the party-derived authority of the arbitrator. Asserting an independent public duty to protect national mandatory laws as well as the enforceability of arbitral awards, some writers …