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Full-Text Articles in Law
Cross-Border Collective Redress And Individual Participatory Rights: Quo Vadis?, S. I. Strong
Cross-Border Collective Redress And Individual Participatory Rights: Quo Vadis?, S. I. Strong
Faculty Publications
This article fills a critical gap in the commentary by undertaking a rights-based analysis of the various issues that arise in cases involving large-scale international litigation, focusing in particular on the Brussels I Regulation and what may be called ‘individual participatory rights’. In so doing, the discussion considers the nature and scope of individual participatory rights in collective litigation as well the ways in which these rights should be weighed and considered. Although the analysis is set in the context of European procedural law, this discussion is of equal relevance to parties outside the European Union, either because they will …
Cross-Border Collective Redress In The European Union: Constitutional Rights In The Face Of The Brussels I Regulation, S. I. Strong
Cross-Border Collective Redress In The European Union: Constitutional Rights In The Face Of The Brussels I Regulation, S. I. Strong
Faculty Publications
This article considers the various issues associated with the creation of a system of collective relief in a region that has traditionally been hostile to the provision of large-scale private litigation. In so doing, the discussion focuses on the clash between certain constitutional rights relating to the ability of the plaintiff to choose the time, place and manner of bringing suit and the European Union’s primary form of legislation concerning cross-border procedure, Council Regulation 44/2001 on jurisdiction and on recognition and enforcement of civil and commercial judgments, commonly known as the Brussels I Regulation.
Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong
Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong
Faculty Publications
This article provides just that sort of guide, outlining the various ways in which U.S. federal courts can become involved in international commercial arbitration and introducing both basic and advanced concepts in a straightforward, practical manner. However, this article provides more than just an overview. Instead, it discusses relevant issues on a motion-by-motion basis, helping readers find immediate answers to their questions while also getting a picture of the field as a whole. Written especially for busy lawyers, this article gives practitioners, arbitrators and new and infrequent participants in international commercial arbitration a concise but comprehensive understanding of the unique …
Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong
Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong
Faculty Publications
This essay considers the tension between the autonomous theory of international commercial arbitration and the more interactive theory advanced by Gary Born during his keynote address at the recent “Border Skirmishes” symposium at the University of Missouri School of Law. In his presentation, Born considered the relationship between litigation and international commercial arbitration and distinguished between permissible “border crossings” and impermissible “border incursions.” This essay considers how these concepts play out both in routine interactions between courts and tribunals and more in difficult scenarios, such as those involving anti-suit injunctions. The discussion also presents statistics concerning the amount of ancillary …
Arbitration Clauses Should Be Enforced According To Their Terms - Except When They Shouldn't Be: The Ninth Circuit Limits Parties' Ability To Contract For Standards Of Review Of Arbitration Awards - Kyocera Corporation V. Prudential-Bache Trade Services, Jonathan R. Bunch
Journal of Dispute Resolution
Arbitration is the process whereby parties submit disputes to a third, neutral party who will issue a decision that is both final and binding upon the parties. The Supreme Court has recognized arbitration as a valuable form of dispute resolution, with its primary advantages being speed, affordability, and the lower degree of hostility created by a less adversarial environment. In contrast to litigation, the standards of review for arbitral awards are defined in the Federal Arbitration Act (FAA) and are extremely narrow. In somewhat of a collision-course with the terms of the FAA is the fact that some courts have …
Centuries Of Contract Common Law Can't Be All Wrong: Why The Uma's Exception To Mediation Confidentiality In Enforcement Proceedings Should Be Embraced And Broadened, Peter Robinson
Journal of Dispute Resolution
The National Conference of Commissioners on Uniform State Laws and House of Delegates of the American Bar Association recently approved the Uniform Mediation Act ("UMA") with an eye toward unifying the law of mediation confidentiality in the United States. Soon, numerous states and other organizations will consider modifying statutes, court rules, or professional standards to conform to the UMA. One of the important aspects of mediation confidentiality is how it applies when enforcing a mediated agreement.' In some jurisdictions, mediation confidentiality interferes with the application of contract law when enforcing a mediated agreement to produce absurd results. This article will …
Does Title Vii Preclude Enforcement Of Compulsory Arbitration Agreements - The Ninth Circuit Says Yes - Duffield V. Robertson Stephens & (And) Co., Ryan D. O'Dell
Journal of Dispute Resolution
This casenote examines a Ninth Circuit decision that considered the impact of the Civil Rights Act of 1991 on the unsettled question of whether Title VII precludes employers from requiring prospective employees, as a mandatory condition of employment, to foreclose their right to bring Title VII claims in federal court. The Ninth Circuit construct the 1991 Act to preclude enforcement of individual employment agreements that require employees to arbitrate statutory claims brought under Title VII. The holding of this case establishes a controversial precedent because it is inconsistent with a seminal Supreme Court decision, the FAA mandate and other recent …
Enforcing International Arbitration Agreements - Marchetto V. Dekalb Genetics Corp., Karen L. Massey
Enforcing International Arbitration Agreements - Marchetto V. Dekalb Genetics Corp., Karen L. Massey
Journal of Dispute Resolution
The importance, magnitude and frequency of international business transactions have necessitated finding an acceptable method of resolving disputes arising from such transactions. Parties to international commercial transactions often come from nations with cultures and legal systems which are greatly diverse.2 Arbitration agreements in international commercial contracts are a preferred manner of resolving disputes.3 Arbitration is a method of providing orderliness and predictability in an area in which it is necessary, but often difficult to achieve.4 In order for the arbitration system to work, courts of law must be willing to relinquish their jurisdiction and allow the arbitration system to resolve …