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Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty
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 …
Games, Dystopia, And Adr, Jennifer W. Reynolds
Games, Dystopia, And Adr, Jennifer W. Reynolds
Jennifer W. Reynolds
What’s the difference between litigation and alternative dispute resolution (ADR)? Litigation is war. ADR is kumbaya by the campfire. Litigation favors the strong over the weak. ADR gives everyone a voice. Litigation is about competition and gameplay. ADR is about cooperation and problem solving. Litigation is coercive. ADR is consensual. Litigation brings out the worst in people. ADR brings out the best. In short, litigation is dystopian, and ADR is utopian. This sanguine conception of ADR has been popular for decades but is hopelessly inadequate. Although a utopian-dystopian dynamic does indeed fuel much ADR scholarship, this dichotomy is not as …
Collective Bargaining Agreements In Discrimination Cases: Forum Shopping Their Way Into A New York District Court Near You!, George Klidonas
Collective Bargaining Agreements In Discrimination Cases: Forum Shopping Their Way Into A New York District Court Near You!, George Klidonas
George Klidonas
There has recently been a divergence of opinion between the state courts and the district courts in New York on the issue of whether a unionized employee must arbitrate discrimination claims in light of a collective bargaining agreement mandating alternative dispute resolution. The problem that New York is faced with is that the New York courts recently failed to properly delineate a standard of what a clear and unmistakable waiver. Furthermore this "split" between the federal and state courts with regards to these arbitration provisions will cause forum shopping by claimants, heavily favoring federal courts. A trilogy of Supreme Court …
Autonomy Feminism: An Anti-Essentialist Critique Of Mandatory Interventions In Domestic Violence Cases, Leigh Goodmark
Autonomy Feminism: An Anti-Essentialist Critique Of Mandatory Interventions In Domestic Violence Cases, Leigh Goodmark
Leigh Goodmark
In the 1970s and 80s, feminists led the way in crafting and advocating for policies to address domestic violence in the United States—and those feminists got it wrong. Desperate to find some way to force police to treat assaults against spouses as they would strangers, the battered women’s movement seized on the idea of mandatory arrest—relieving police of discretion and requiring them to make arrests whenever probable cause existed. But mandatory arrest also removed discretion from the women that the policy purported to serve, a trend that has come to characterize domestic violence law and policy. Later policy choices, like …
Is Three A Crowd?: Neutrality, Partiality And Partisanship In The Context Of Tripartite Arbitrations, Sean-Patrick Wilson, David J. Mclean
Is Three A Crowd?: Neutrality, Partiality And Partisanship In The Context Of Tripartite Arbitrations, Sean-Patrick Wilson, David J. Mclean
Sean-Patrick Wilson
Despite the widespread usage of party-appointed tripartite arbitration, for some time there has been confusion and concern among academics, courts, parties and arbitrators about the proper role of neutrality in tripartite structure. For example, is it legally permissible for party-appointed arbitrators to be partial? What difference, if any, exists between terms such as “partial,” “partisan” and “non-neutral”? How do we reconcile the Federal Arbitration Act’s ban on “evident partiality” with the concept of having non-neutral arbitrators? Unfortunately, neither Congress nor the Supreme Court has delineated fully the concept of neutrality of party-appointed arbitrators, and the case law among the circuit …
Compelling Mediation In The Context Of Med-Arb Agreements, Sean-Patrick Wilson, David J. Mclean
Compelling Mediation In The Context Of Med-Arb Agreements, Sean-Patrick Wilson, David J. Mclean
Sean-Patrick Wilson
The recent case of Advanced Bodycare v. Thione, 07-12309, 2008 U.S. App. LEXIS 8584 (11th Cir. Apr. 21, 2008) invited the Eleventh Circuit to explore which types of ADR are considered “arbitration” for purpose of the Federal Arbitration Act, 9 U.S.C. § 1 (“FAA”). According to the Eleventh Circuit, an agreement to mediate, as well as an agreement to either mediate or arbitrate, falls outside of the FAA’s scope, making the FAA’s remedies unavailing to parties wishing to use its provisions to stay litigation or to compel a single agreement which requires the parties to either mediate or arbitrate. The …
Ethics And Collaborative Lawyering: Why Put Old Hats On New Heads?, Christopher M. Fairman
Ethics And Collaborative Lawyering: Why Put Old Hats On New Heads?, Christopher M. Fairman
Christopher M Fairman
No abstract provided.