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Pepperdine Dispute Resolution Law Journal

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Table Of Contents & Masthead, Patrick Babajanian Jun 2023

Table Of Contents & Masthead, Patrick Babajanian

Pepperdine Dispute Resolution Law Journal

No abstract provided.


The Use Of Arbitration Clauses By Social Media Websites: A Critique, Kavya Jha, Ananya Singh Jun 2023

The Use Of Arbitration Clauses By Social Media Websites: A Critique, Kavya Jha, Ananya Singh

Pepperdine Dispute Resolution Law Journal

The arbitration clauses contained in the Terms of Services (ToS) of most social media websites mandate arbitration and the waiver of class arbitration.1 In light of this reality, this article seeks to analyze the legal position with respect to mandatory arbitration and class arbitration waiver in the United States, India, and European Union (EU). It compares and juxtaposes the respective positions in these three jurisdictions to find that whereas the United States has been pro-arbitration to the extent of being detrimental to consumer interest, India has adopted an overly protectionist approach, while the EU has adopted an effective model to …


Is There A Role For Conflict Photography In Conflict Resolution? It's Complicated, Joseph Clift Jun 2023

Is There A Role For Conflict Photography In Conflict Resolution? It's Complicated, Joseph Clift

Pepperdine Dispute Resolution Law Journal

In this essay, I argue that conflict photography has an important and useful role in conflict understanding and resolution. While conflict images’ usefulness has been debated, I argue that its importance has not. I start with a description of conflict photography and then provide a short historical account of the camera and its use in documenting conflicts. Next, I discuss conflict resolution and present examples of conflict resolution strategies. I then present evidence of how conflict photography can be a useful tool to support some of those strategies. Afterwards, I discuss the complicated nature of conflict photography’s usefulness. I conclude …


St(D)Reaming Resolution: Crowd-Based Stepped Online Dispute Resolution For Professional Gamers, Vtubers & Streamers, Benjamin Davies Jun 2023

St(D)Reaming Resolution: Crowd-Based Stepped Online Dispute Resolution For Professional Gamers, Vtubers & Streamers, Benjamin Davies

Pepperdine Dispute Resolution Law Journal

This paper proposes and creates a novel method to resolve disputes between content creators, Vtubers, Professional Gamers, and streamers by utilizing a crowd based stepped dispute resolution system upheld and voted on by viewers, shareholders, and the streaming company: Twitch or YouTube. To reach this goal, the proposal will include comparisons to the current dispute resolution system used by Twitch and YouTube; a proposed online dispute resolution system; diagrams of the proposal; key performance indexes (KPI’s); utilization of arbitral analytics with artificial intelligence to create a fair and balanced resolution system; and some predictions on the future of the industry …


Commercial Mediation In Mainland China: Pitfalls & Opportunities, Meng Chen Jun 2023

Commercial Mediation In Mainland China: Pitfalls & Opportunities, Meng Chen

Pepperdine Dispute Resolution Law Journal

This article offers insight into the practice of Chinese mediation, especially in resolving commercial disputes, considering the United Nations Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention) entered into force on September 12, 2020. First, this article evaluates the attractiveness, vulnerabilities, and popularity of mediation as a means of dispute resolution. The article then introduces the Chinese model of using mediation to resolve commercial disputes, specifically in judicial and arbitral proceedings. Based on empirical data and rules analysis, this article concludes with the benefits of using mediation in China to resolve disputes and exposes a discrepancy between …


Managing Multiplicity: Consolidating Parallel Arbitration Proceedings For Renewal Energy Disputes, Francesca Pinto Jun 2023

Managing Multiplicity: Consolidating Parallel Arbitration Proceedings For Renewal Energy Disputes, Francesca Pinto

Pepperdine Dispute Resolution Law Journal

The United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, considered the most widely used set of ad hoc rules in international arbitration, do not contain any provisions on consolidating parallel proceedings. Considering the complex, multiparty, and multiple-contract nature of renewable energy investment and development, the UNCITRAL Arbitration Rules should implement consolidation provisions that explicitly address consolidation for related arbitration proceedings and—in some circumstances—enforce consolidation regardless of whether all parties consent. Part II of this article provides an overview of transactions related to the investment, development, and operation of renewable energy projects. Part III identifies the risks of parallel …


Arbitration—From Sacred Cow To Golden Calf: Three Phases In The History Of The Federal Arbitration Act, Katherine V.W. Stone Jun 2023

Arbitration—From Sacred Cow To Golden Calf: Three Phases In The History Of The Federal Arbitration Act, Katherine V.W. Stone

Pepperdine Dispute Resolution Law Journal

For the past twenty-five years, without much fanfare, arbitration law has remade the civil justice system in the United States. As now interpreted, the Federal Arbitration Act (the ‘FAA’) requires millions of consumers, workers, homeowners, credit card holders, rental car uses, hospital patients, and other ordinary people to forgo use of the courts to vindicate important rights. One development that has garnered particular attention is the tendency of corporations to include class action waivers in arbitration agreements, thereby preventing consumers and employees from aggregating small claims and litigating on a collective basis. While arbitration has become ubiquitous, it has also …


Deterrence Defeats Doping: How Arbitration Can Resolve Major League Baseball's Performance-Enhancing Drug Problem, Brice Barnes Jun 2023

Deterrence Defeats Doping: How Arbitration Can Resolve Major League Baseball's Performance-Enhancing Drug Problem, Brice Barnes

Pepperdine Dispute Resolution Law Journal

This article analyzes MLB’s PED policy and proposes amending the policy by arbitrating the agreement to create one that further deters players from using PEDs. The remainder of this article is divided into five parts: Part II discusses the significance of the PED issue and why resolution is necessary; Part III discusses the history of PED use in baseball and the efforts by the League to address it; Part IV proposes the solution of arbitration and explains how the process might work; Part V addresses potential objections to that solution; and finally, Part VI concludes.


Pass The Salt: Problem-Resolution Lawyering Across The Twenty-First Century Law Curriculum, Kris Franklin, F. Peter Phillips Apr 2023

Pass The Salt: Problem-Resolution Lawyering Across The Twenty-First Century Law Curriculum, Kris Franklin, F. Peter Phillips

Pepperdine Dispute Resolution Law Journal

Attorneys work with clients to resolve problems. Legal education can help prepare law graduates to do that work. As an added bonus, doing so would in turn help law students understand and retain the subjects they study. Law professors who teach alternative dispute resolution, lawyering skills, clinics, and sometimes traditional doctrinal courses, have all called for greater inclusion of dispute resolution in the law school curriculum. Some have urged the introduction of specific courses to prepare contemporary law students to work as problem resolvers. This Article builds on these and other calls for reform, but urges a genuine reconceptualization of …


Pipeline Coordination: The Importance Of Properly Defining An Arbitral Tribunal’S Authority In Gas Price Review Arbitration, Aikaterini (Katerina) Karamousalidou Apr 2023

Pipeline Coordination: The Importance Of Properly Defining An Arbitral Tribunal’S Authority In Gas Price Review Arbitration, Aikaterini (Katerina) Karamousalidou

Pepperdine Dispute Resolution Law Journal

Unprecedented events in international gas commerce have significantly increased gas pricing disputes. International arbitration, as a neutral and binding process, offers a plethora of advantages to international players of the energy industry who are interested in resolving their disputes in an efficient way. However, gas price review is extremely complex. In particular, a gas price review clause is what delineates an arbitrator’s mandate and hence, arbitrators must be prudent to pay careful attention to act within the boundaries of their authority. Failure to do so may result in the award being set aside. This paper addresses: (1) the determination of …


Masthead & Table Of Contents, Patrick Babajanian Apr 2023

Masthead & Table Of Contents, Patrick Babajanian

Pepperdine Dispute Resolution Law Journal

No abstract provided.


Shifting Into “Neutral”: Evaluating Mediation As A Peaceful Alternative To The Forceful Resolution Of The 2022 Canada–Freedom Convoy Dispute, Teresa (Tessa) Griego Apr 2023

Shifting Into “Neutral”: Evaluating Mediation As A Peaceful Alternative To The Forceful Resolution Of The 2022 Canada–Freedom Convoy Dispute, Teresa (Tessa) Griego

Pepperdine Dispute Resolution Law Journal

In early 2022, the Canadian government found itself confronted by a group of truck drivers—in what came to be known as the “Freedom Convoy”—protesting government-imposed restrictions related to the COVID-19 pandemic. This article evaluates how mediation could—and should—have been used as an effective means for the government and protestors to resolve their dispute. It begins by defining the government health and safety measures that prompted the protests and describing the ensuing protest movement by the Freedom Convoy. The article then discusses the protest’s implications on commerce and on the communities where it was located. Next, the article describes the unilateral …


The New Normal: Navigating Legal Challenges In The World Of Influencer Marketing & How Adr Can Help, Olivia Davis Apr 2023

The New Normal: Navigating Legal Challenges In The World Of Influencer Marketing & How Adr Can Help, Olivia Davis

Pepperdine Dispute Resolution Law Journal

No abstract provided.


Calming The Caucasus: Neutralizing Azerbaijan’S Military “Batna” To Restart The Peace Process In Nagorno-Karabakh (Artsakh), Patrick Babajanian Apr 2023

Calming The Caucasus: Neutralizing Azerbaijan’S Military “Batna” To Restart The Peace Process In Nagorno-Karabakh (Artsakh), Patrick Babajanian

Pepperdine Dispute Resolution Law Journal

The article begins by surveying the historical background of the Artsakh conflict, from its ancient roots to the immediate aftermath of the 2020 war. It then introduces the key issue I identify as obstructing the peace process from resuming, namely Azerbaijan’s calculation that its military BATNA outweighs any value of continued negotiation. Next, the article evaluates two legal tactics the United States could implement in its national capacity to correct this situation, focusing on actions intended to limit Azerbaijan’s military strength by withholding foreign aid and enacting targeted sanctions, with the goal of achieving greater parity between Armenia and Azerbaijan …


Mandating Early Neutral Evaluations: Efficient Or Excessive?, William J. Baker Jun 2022

Mandating Early Neutral Evaluations: Efficient Or Excessive?, William J. Baker

Pepperdine Dispute Resolution Law Journal

This paper explores whether mandating alternative dispute resolution (ADR), specifically in the form of early neutral evaluations (ENEs), actually improves efficiency in federal courts. This paper attempts to challenge and test the presumption that ADR inherently promotes efficiency in all civil cases. Part I introduces the reader to ENEs, ADR, their presence in federal courts, and efficiency’s role within this framework. Part II challenges the notion that ADR and efficiency are inherently linked, and asks whether mandating ENEs can prove if this inherent efficiency exists. Part III presents the legal theory that addresses this question, tending to support the notion …


Table Of Contents And Masthead, Katelyn Leeveriphan Jun 2022

Table Of Contents And Masthead, Katelyn Leeveriphan

Pepperdine Dispute Resolution Law Journal

No abstract provided.


The Cjeu And The Introduction Of International Dispute Settlement Mechanisms Within The Eu: Is Alternative Dispute Resolution In The Eu In Safe Hands?, Tasnim Ahmed Jun 2022

The Cjeu And The Introduction Of International Dispute Settlement Mechanisms Within The Eu: Is Alternative Dispute Resolution In The Eu In Safe Hands?, Tasnim Ahmed

Pepperdine Dispute Resolution Law Journal

This article draws upon the jurisprudence of the Court of Justice of the European Union (CJEU) concerning the role of the international dispute settlement mechanisms operating within the EU legal order. The Court has resisted the introduction of such dispute settlement mechanisms, referring to Articles 267 and 344 of the Treaty of the Functioning of the European Union (TFEU) as justifications for its ‘judicial monopoly’. The Achmea case in particular allows the Court to declare these dispute settlement mechanisms contrary to EU law. However, with the Comprehensive Economic Trade Agreement (CETA) Opinion, the Court itself has permitted the CETA Investment …


Arbitration And The Right To Have Your Day In Court: Meeting Again At The Turning Of The Tide, Lucas Clover Alcolea Jun 2022

Arbitration And The Right To Have Your Day In Court: Meeting Again At The Turning Of The Tide, Lucas Clover Alcolea

Pepperdine Dispute Resolution Law Journal

This article aims to explore court decisions which have made arbitration less attractive to businesses—both those which have refused to enforce arbitration clauses and paradoxically and those which have enforced arbitration clauses—as well as to provide an overview of businesses' reactions to those decisions and make some predictions about the future direction of travel. To that end, this article will be divided into three main parts. The first will explore the decision of New Prime Inc. as well as the various federal appellate decisions that have applied it. The second will explore the challenges posed by mass arbitration, and the …


Standing At Crossroads: The Trajectory Of Iias And Isds And Their Projection In The Post-Pandemic Global Economy, Yasharth Misra Jun 2022

Standing At Crossroads: The Trajectory Of Iias And Isds And Their Projection In The Post-Pandemic Global Economy, Yasharth Misra

Pepperdine Dispute Resolution Law Journal

No abstract provided.


Fixing The Dent: How Nfl Owners Closed The Door To Civil Common Law Liability, Zachary Okun Jun 2022

Fixing The Dent: How Nfl Owners Closed The Door To Civil Common Law Liability, Zachary Okun

Pepperdine Dispute Resolution Law Journal

With a new, eleven-year Collective Bargaining Agreement (CBA) upon us, this paper will discuss in Section II what a CBA is, the purpose CBAs serve, and the function and historical treatment of the NFL’s CBA by the courts. Section II will also explain the NFL arbitration process, the reason the NFL fights so hard to enforce arbitration, and why the players should have been more cognizant of the provisions within the CBA which act to insulate the NFL and its Clubs from common law tort liability. Section III will discuss the NFL’s historical reliance of the LMRA §301 preemption defense; …


Arbitral Analytics: How Moneyball Based Litigation/Judicial Analytics Can Be Used To Predict Arbitration Claims And Outcomes, Benjamin Davies Jun 2022

Arbitral Analytics: How Moneyball Based Litigation/Judicial Analytics Can Be Used To Predict Arbitration Claims And Outcomes, Benjamin Davies

Pepperdine Dispute Resolution Law Journal

This paper reviews, discusses, and advances the field of artificial intelligence in the field of litigation analytics and its application to arbitrations. To better explain the weight an attorney, judge, arbitrator, or the public should have towards artificial intelligence and its utilization in the legal field, this paper reviews current AI publications in the litigation analytics field, historical examples, ethical considerations for analytics, and issues surrounding the accumulation of litigation data. Thereafter, this combined knowledge and experience is applied to Federal Industry Regulatory Authority (FINRA) arbitration awards with a novel AI program designed to scrape, index, and analyze these awards …


Designing Responsive Legal Systems: A Comparative Study, Nofit Amir, Michal Alberstein Jun 2022

Designing Responsive Legal Systems: A Comparative Study, Nofit Amir, Michal Alberstein

Pepperdine Dispute Resolution Law Journal

The drive for efficiency has caused many legal systems to redesign themselves, creating multiple paths for dispute resolution and incorporating settlement-promoting tools into the judicial role. However, as this study shows, legal systems have taken divergent approaches as they redesign themselves to accommodate settlement practices, leading to widely disparate results. This study probes the paths taken by three countries’ legal systems—England and Wales (common law), Israel (mixed), and Italy (continental law)—drawing on court docket analyses, courtroom observations, and interviews with judges in the three legal systems. It uncovers central points of divergence—emphasized stage of dispute resolution, separation vs. combination of …


Table Of Contents And Masthead, Katelyn Leeveriphan May 2022

Table Of Contents And Masthead, Katelyn Leeveriphan

Pepperdine Dispute Resolution Law Journal

No abstract provided.


Can Islamic Law Principles Regarding Settlement Of Criminal Disputes Solve The Problem Of The U.S. Mass Incarceration?, Amin R. Yacoub, Becky Briggs May 2022

Can Islamic Law Principles Regarding Settlement Of Criminal Disputes Solve The Problem Of The U.S. Mass Incarceration?, Amin R. Yacoub, Becky Briggs

Pepperdine Dispute Resolution Law Journal

The mass incarceration crisis in the United States (US) remains a vexing issue to this day. Although the US incarcerated population has decreased by twenty-five percent amid the COVID-19 pandemic, the US remains a leading country in the number of incarcerated people per capita. Focusing on Islamic law principles governing settlement in criminal cases, the rehabilitative approach of the Icelandic criminal justice model, and the powerful role of prosecutors in serving justice, this research argues that integrating settlement and mediation into the prosecutorial proceedings will significantly reduce mass incarceration in the US.


A Reaction To Systemic Inaction: Breaking The Congressional Logjam Where It Counts, Nicholas W. Archibald May 2022

A Reaction To Systemic Inaction: Breaking The Congressional Logjam Where It Counts, Nicholas W. Archibald

Pepperdine Dispute Resolution Law Journal

William Marshall proposed that congressional inaction threatening “the ability of the government to function” should be “subject to constitutional scrutiny.” This article is a response to Marshall’s proposal and offers a potential solution based on alternative dispute resolution rather than the courts. When faced with seemingly insurmountable differences, Congress must look to alternative dispute resolution to reach a breakthrough on critical issues. This paper proposes the creation of a Mediation Office to assist Congress in coming to these breakthroughs. This mechanism could also possibly intervene when the issue is between Congress and the President. Part II of this article will …


Indiana In The Midst Of #Metoo: The Argument For Enforcing Arbitration In Sexual Harassment Claims, Jonathan Cisneros May 2022

Indiana In The Midst Of #Metoo: The Argument For Enforcing Arbitration In Sexual Harassment Claims, Jonathan Cisneros

Pepperdine Dispute Resolution Law Journal

This note argues that it is in the best interest of sexual harassment victims and the state of Indiana to not follow suit in passing legislation that prohibits employers from requiring mandatory arbitration in sexual harassment cases. This is based on an analysis of the potential factors underlying Indiana’s current lack of legislative movement, the weight of the arguments for and against mandatory arbitration, and consideration of the preemption issues surrounding state laws banning mandatory arbitration. Part II sets the foundation for this note by laying out the most pertinent parts of the FAA and analyzing how the U.S. Supreme …


You Be The Judge: Analyzing When The Federal Arbitration Act's Judicial Review Standards Apply In State Court, Max Birmingham May 2022

You Be The Judge: Analyzing When The Federal Arbitration Act's Judicial Review Standards Apply In State Court, Max Birmingham

Pepperdine Dispute Resolution Law Journal

This article addresses whether, when the Federal Arbitration Act (“FAA”) governs an arbitration, the FAA’s judicial review standards apply in state court and preempt application of different state law judicial review standards. This argument proceeds as follows: Part I provides an introduction. Part II analyzes the procedural reform intent of the FAA and why the statute seeks to standardize the arbitration process. Part III reviews the judicial review of arbitration awards as promulgated in Hall Street Associates, L.L.C. v. Mattel, Inc. Part IV reviews the generations of FAA cases which have been held to be preempted by SCOTUS. Part V …


"Stronger" Together: Kanye Could Have Owned His Masters By Engaging In Collective Bargaining, L. Camille Cordova May 2022

"Stronger" Together: Kanye Could Have Owned His Masters By Engaging In Collective Bargaining, L. Camille Cordova

Pepperdine Dispute Resolution Law Journal

Because the legislature and judiciary have failed to protect recording artists’ interests, this article proposes that engaging in collective bargaining will re-balance the bargaining positions of the major record labels and recording artists to create a mutually beneficial agreement that gives recording artists a termination of rights clause that mirrors section 203 of the 1976 Copyright Act. By contracting with a major record label, recording artists are automatically eligible for union membership to the Screen Actors Guild-American Federation of Television and Radio Artists union (“SAG-AFTRA”), who have experience negotiating other collective-bargaining agreements with these record labels. This agreement would provide …


Restricting Double-Hatting To Safeguard International Arbitrations, Yasaschandra Devarakonda May 2022

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 …


Micro-Mediation: A New First Step On The Mixed-Mode Alternative Dispute Resolution Ladder In Higher Education, Joseph C. Alfe May 2022

Micro-Mediation: A New First Step On The Mixed-Mode Alternative Dispute Resolution Ladder In Higher Education, Joseph C. Alfe

Pepperdine Dispute Resolution Law Journal

Higher education is fraught with disputes on both a macro and micro level. In a broad sense, institutions of higher education serve as a focal point for many disparate cultures, economic strata, ages, genders, races, ideologies, and other societal influences, and concentrates them within an insular community. Such an amalgamation of humanity is bound to produce conflicts of all kinds. These disputes can range from the elementary to the criminal. Title IX of the Educational Amendments of 1972 governs disputes rising to the level of sexual harassment or discrimination and are updated by periodic agency updates disseminated through “dear colleague” …