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Articles 1 - 14 of 14
Full-Text Articles in Law
Defining The Scope Of Indirect Expropriation For International Investments , Peter D. Isakoff
Defining The Scope Of Indirect Expropriation For International Investments , Peter D. Isakoff
Global Business Law Review
At present, arbitral tribunals have applied a variety of standards to ascertain when indirect expropriation occurs. This article examines the complexities and ambiguities of current indirect expropriation standards and argues that a clear, uniform standard is needed to identify indirect expropriation. Ultimately, this article proposes that arbitral tribunals should only find that indirect expropriation occurs when (i) a state takes actions that substantially deprive the foreign investor of the profitability of its investment, and (ii) the state action was not reasonably predictable to the investor. Part I of this article provides a summary of the current state of expropriation doctrine. …
How Developing Countries Can Adapt Current Bilateral Investment Treaties To Provide Benefits To Their Domestic Economies, Joshua Boone
How Developing Countries Can Adapt Current Bilateral Investment Treaties To Provide Benefits To Their Domestic Economies, Joshua Boone
Global Business Law Review
Bilateral investment treaties (hereinafter "BIT") have been created with the goal of promoting economic prosperity through the facilitation of international investment flows. The idea was to facilitate these investment flows by the opening up of secure channels for foreign direct investment (hereinafter "FDI"), stabilizing the investment climate, granting protective investment guarantees, and providing neutral dispute mechanisms for "injured" investors. Since their inception in 1959, BITs have experienced a "massive and sudden proliferation . . . which has been . . . a 'remarkable' event in international law[,]" and as of the end of 2008, there were over 2,600 BITs in …
Overview Of International Arbitration In The Intellectual Property Context, Kenneth R. Adamo
Overview Of International Arbitration In The Intellectual Property Context, Kenneth R. Adamo
Global Business Law Review
Resolving intellectual property rights (“IPR”) issues through alternative dispute resolution (“ADR”) proceedings was a technique long-developing in many major countries. Despite the earlier presence of the Arbitration Act in United States law, the subject of use of arbitration in IPR situations, especially regarding U.S. patents, remained an open and contested issue, until the original addition of 35 U.S.C. § 294 to the U.S. Patent Act in 1982. U.S. law is now resolved in the availability of IPR arbitration as an ADR tool, either through a “pre-problem” contract, such as a license, or as a “post-problem” mechanism elected and/or established by …
Reverse Pre-Empting The Federal Arbitration Act: Alleviating The Arbitration Crisis In Nursing Homes, Jana Pavlic
Reverse Pre-Empting The Federal Arbitration Act: Alleviating The Arbitration Crisis In Nursing Homes, Jana Pavlic
Journal of Law and Health
In Casarotto, the Supreme Court enunciated that Montana's notice requirement conflicted with the "goals and policies of the FAA." The inequities associated with the process of pre-dispute arbitration agreements in nursing homes, however, confirm that the FAA's "goals and policies"' conflict with "accepted principles of contract law"' in this context. Long standing principles of contract law that predate the FAA, as well as basic human morality, should supersede the interests of efficiency and convenience purportedly served by the general enforceability of the statute. State case law as well as attempted state legislation already evince an underlying public policy to protect …
Revolution In Law Through Arbitration, The Eighty-Fourth Cleveland-Marshall Fund Visiting Scholar Lecture , Thomas E. Carbonneau
Revolution In Law Through Arbitration, The Eighty-Fourth Cleveland-Marshall Fund Visiting Scholar Lecture , Thomas E. Carbonneau
Cleveland State Law Review
My subject is arbitration. I explore how its re-emergence during the last forty years has revolutionized the thinking about, and the practice of, law. The development of a "strong federal policy favoring arbitration" cast aside traditional acceptations about law and adjudication. The rule of law-the human civilization associated with law and the legal process-has been profoundly, perhaps irretrievably, altered by the rise of arbitration. The landmark cases in labor and employment arbitration-Alexander v. Gardner-Denver Company (the "old time religion") and Gilmer v. Interstate/Johnson Lane Corporation (the "new age"thinking)-attest to the enormous distance that separates past and present concepts of legal …
Unconscionability Found: A Look At Pre-Dispute Mandatory Arbitration Agreements 10 Years After Doctor's Associates, Inc. V. Casarotto, Sandra F. Gavin
Unconscionability Found: A Look At Pre-Dispute Mandatory Arbitration Agreements 10 Years After Doctor's Associates, Inc. V. Casarotto, Sandra F. Gavin
Cleveland State Law Review
This Article first explores the Supreme Court's initially reluctant application of the FAA's contract approach to enforceability of arbitration agreements which lasted well into the early 1980s. It then examines federal preemption of state law and the evolution of the arbitration contract as we know it today. Finally, it looks at the application of defenses that exist “at law or in equity for the revocation of any contract” as applied over the past ten years following the Court's decision in Doctor's Associates, Inc. v. Casarotto. This author examines a decade of decisional law and finds a new doctrine of arbitration …
Sexual Harassment In The Workplace: How Arbitrators Decide , Mollie H. Bowers, E. Patrick Mcdermott
Sexual Harassment In The Workplace: How Arbitrators Decide , Mollie H. Bowers, E. Patrick Mcdermott
Cleveland State Law Review
For thirty years courts and labor arbitrators have grappled with what constitutes sexual harassment and how to remedy such behavior. The Federal judiciary has developed case law on sexual harassment under Title VII of the Civil Rights Act of 1964. However, arbitrators addressing this issue under collective bargaining agreements have often treated similar fact patterns differently than jurists. In contrast, labor arbitrators decide culpability first, and then consider the appropriate remedy. In reconciling these separate paths for establishing standards of workplace conduct, the authors will provide a model that explains how arbitrators decide sexual harassment cases and how this model …
The Effectiveness Of Involuntary Dissolution Suits As A Remedy For Close Corporation Dissension, Harry J. Haynsworth
The Effectiveness Of Involuntary Dissolution Suits As A Remedy For Close Corporation Dissension, Harry J. Haynsworth
Cleveland State Law Review
Intra-corporate dissension between shareholders in a close corporation that can lead to serious deadlock, corporate paralysis and attempted squeeze-outs or other oppressive action is well documented. The purpose of this article is to discuss the available remedies for dealing with this dissension, placing particular emphasis on involuntary dissolution suits, since historically such suits have been the most common litigation remedy used by aggrieved shareholders. The basic conclusion reached is that for the most part judges have done a commendable job of balancing the expectation interests of minority shareholders against the inherent voting and management rights of majority shareholders, and of …
Buffalo Forge Co. V. United Steelworkers: The Supreme Court Sanctions Sympathy Strikes, Michael E. Kushner
Buffalo Forge Co. V. United Steelworkers: The Supreme Court Sanctions Sympathy Strikes, Michael E. Kushner
Cleveland State Law Review
The Norris-LaGuardia Act was enacted in 1932 to curb the unbridled use of the federal injunction as a remedy in labor-management disputes. After enactment of the Norris-LaGuardia Act, labor unions grew and gained substantial collective bargaining power. Congressional policy then shifted to encouraging the effective enforcement of collective bargaining agreements between employers and unions. Subsequent to enactment of the LMRA, the no-strike obligation and arbitration procedures became standard bargained-for provisions. However, Judges soon refused to enjoin strikes in alleged violation of no-strike clauses, basing their decisions on the force of section 4. Employers contended that the more recent section 301 …
Arbitration Of Right Of Employee To Self-Expression, Harold D. Smith
Arbitration Of Right Of Employee To Self-Expression, Harold D. Smith
Cleveland State Law Review
The conflicting interests dealt with by arbitration cases summarized in this paper involve management's right to direct an employee's behavior and the employee's right to retain control over his behavior. Many arbitrators attempt to balance these interests on the theory that (1) an individual's rights are modified to some extent when he voluntarily accepts those responsibilities which accompany his entering an employee relationship; and (2) a contractual right to discharge for just cause, does not equip the employer with an absolute right to direct the employee to do or not to do anything which the employer feels would promote the …
Subcontracting Arbitration: How The Issues Are Decided, Edwin H. Jacobs
Subcontracting Arbitration: How The Issues Are Decided, Edwin H. Jacobs
Cleveland State Law Review
The purpose of this paper is to determine what, if any, particular criteria are currently being used by arbitrators in deciding subcontracting controversies involving labor and management where a contract exists between the parties. The failure of traditional standards in the evaluation of subcontracting controversies has long been evident. The view here taken opposes those standards and indicates that there is a soundly based and readily analyzed common factor, available as a basis for the determination of these disputes.
Arbitration, Statute Of Limitations, And Uninsured Motorist Endorsements, Leona M. Hudak
Arbitration, Statute Of Limitations, And Uninsured Motorist Endorsements, Leona M. Hudak
Cleveland State Law Review
Except in California, uninsured motorist statutes do not provide for any specified period within which the injured must file his damages. The uninsured motorist coverage clauses in policies have likewise been silent on the subject .A controversy has arisen as to whether the (usually) shorter negligence (tort) statute of limitations or the longer contract time limit governs. The controversy can be readily resolved: either the insurers express a specific time period in their uninsured motorist endorsements within which their injured insureds must file their complaints; or state legislatures should amend their uninsured motorist coverage statutes to contain such express provision, …
Uninsured Motorist Coverage, Henry A. Hentemann
Uninsured Motorist Coverage, Henry A. Hentemann
Cleveland State Law Review
This article is concerned with the insurance contract that provides this unique coverage and the legal problems that surround some of its major provisions. Many of these, however, are not yet fully resolved. This is due to the relatively early stage of its development and to the fact that existing decisions are too few and too fragmentary to permit a statement of controlling rules or principless Nevertheless, the problems will be posed and the principles of law and the cases will be explored. The article will concern itself with the right of subrogation, the arbitration clause and the applicable statute …
Interstate Enforcement Of Arbitration Awards And Judgments, A. M. Stanger
Interstate Enforcement Of Arbitration Awards And Judgments, A. M. Stanger
Cleveland State Law Review
In Arbitration, if completed, results in an award. That award must be enforced. In order to do so, it is necessary to enter judgment with respect thereto. The first problem is the acquisition of personal jurisdiction over the defendant for this purpose, in the event that it has not already been acquired previously in connection with proceedings to compel arbitration. The subject of acquiring jurisdiction will not be dealt with in this note because it does not differ too much from the general problems of acquiring jurisdiction in personam with respect to proceedings to compel jurisdiction. We shall therefore be …