Law Commons^™

Pandemic As Transboundary Harm: Lessons From The Trail Smelter Arbitration, Russell A. Miller

Scholarly Articles

The COVID-19 pandemic has caused incalculable harm around the world. The fact that this immense harm can be traced back to a localized outbreak in or near Wuhan, China, raises questions about the responsibility China might bear for the pandemic under public international law. Famously applied in the seminal Trail Smelter Arbitration (1938/1941), the Transboundary Harm Principle provides that no state can use or allow the use of its territory in a manner that causes significant harm in the territory of other states. This article does not intend to tap into the unseemly, xenophobic spirit that animates much of the …

Unfair By Default: Arbitration's Reverse Default Judgment Problem, Alexi Pfeffer-Gillett

Scholarly Articles

It is a foundational principle of civil law that a defendant who fails to respond to allegations is deemed to have admitted those allegations and can be subjected to default judgment liability. This threat of default judgment incentivizes defendants to respond to claims, thereby discouraging delay tactics and helping ensure cases are resolved efficiently on the merits.

In consumer and employment arbitration, though, the fairness and efficiency benefits of traditional default judgment are flipped, rewarding rather than punishing unresponsive defendants. This difference from civil litigation arises out of arbitration’s fee structures: if a defendant-company fails to pay its share of …

Hearing On The Foreign Sovereign Immunities Act, Coronavirus, And Addressing China’S Culpability Before The Senate Committee On The Judiciary, Russell A. Miller

Scholarly Articles

There are a number of theories about the Chinese government’s acts or omissions concerning the emergence and world-wide spread of the coronavirus that may be the proximate cause of actionable transboundary harm. All of these theories start with the incontestable fact that the coronavirus outbreak originated in China. One theory is concerned with the conduct of the Chinese government after the health crisis emerged. This “ex post” theory alleges a broad range of acts and omissions that helped transform a local outbreak into a global pandemic. There is room for this theory under the Transboundary Harm Principle. But the “ex …

Conflicts And Laudato Si’: Ten Principles For Environmental Dispute Resolution, Lucia A. Silecchia

Scholarly Articles

Unfortunately, conflicts are all too familiar in the modern world. Global conflicts claim and threaten the lives of many. Personal conflicts strike at the heart of families and friendships. Courts, workplaces, communities, the political process, mediating institutions, businesses, and media all seem fraught with conflicts that can unnecessarily divide rather than unite.

Without a doubt, there is a certain amount of conflict that is helpful, and even vitally necessary, to any society. Without it, there is no healthy debate about things that matter, a diminished ability to reach compromises that may represent the best of competing ideas, and less opportunity …

Judging Third-Party Funding, Victoria Shannon Sahani

Scholarly Articles

Third-party funding is an arrangement whereby an outside entity finances the legal representation of a party involved in litigation or arbitration. The outside entity – called a “third-party funder” – could be a bank, hedge fund, insurance company, or some other entity or individual that finances the party's legal representation in return for a profit. Third-party funding is a controversial, dynamic, and evolving phenomenon. The practice has attracted both national headlines and the recent attention of the Advisory Committee on the Federal Rules of Civil Procedure. The Advisory Committee recently declared that “judges currently have the power to obtain information …

Law Student Mediators Wear A Triple Crown: Skilled, Sellable, & Successful, Laurie A. Lewis

Scholarly Articles

This Article considers several trends that converge to make it a highly favorable time for law students to obtain mediation training and work as mediators prior to graduating. Part I summarizes a brief history of the modern ADR movement, and mediation's emergence as the ADR methodology of choice. Part II discusses the proliferation of live clinics in law schools, with a special emphasis upon mediation clinics and their role in teaching unique practice-ready skills. Part III focuses on the practicalities of community mediation training as well as state requirements for mediators. Finally, Part IV considers the tight legal job market …

The Diversity Challenge: Exploring The "Invisible College" Of International Arbitration, Susan D. Franck

Scholarly Articles

As diversity can affect the perceived legitimacy of a state’s dispute resolution system and the quality of judicial decisions, diversity levels in the national bench and bar have been an area of transnational concern. By contrast, little is known about diversity of adjudicators and counsel in international arbitration. With a lack of accurate, complete, and publicly available data about international arbitrators and practitioners, speculation about membership in the “invisible college” of international arbitration abounds. Using data from a survey of attendees at the prestigious and elite biennial Congress of the International Council for Commercial Arbitration permitted one glimpse into the …

Apologies In The Marketplace, Kish Vinayagamoorthy

Scholarly Articles

In order to better appreciate the insufficiency of money in repairing relationships, Part I describes the benefits that an apology brings to the injured party, transgressor, and the broader community in which the parties belong. Part II explains the increasing significance of relationships to certain categories of commercial transactions and provides examples of the types of relational damage that a contractual breach can cause to these commercial relationships. Part III explains how the benefits previously described in Part I are applicable to repairing the types of commercial relational harm described in Part II. Given that relationships matter especially in transnational …

The Icsid Effect? Considering Potential Variations In Arbitration Awards, Susan D. Franck

Scholarly Articles

The legitimacy of the World Bank's dispute resolution body - The International Centre for the Settlement of Investment Disputes (ICSID) - is a matter of heated debate. Some states have alleged that ICSID is biased, withdrawn from the ICSID Convention, and advocated creating alternative arbitration systems. Using pre-2007 archival data of the population of then- known arbitration awards, this Article quantitatively assesses whether ICSID arbitration awards were substantially different from arbitration awards rendered in other forums. The Article examines variation in the amounts claimed and outcomes reached to evaluate indicators of bias. The results indicated that there was no reliable …

Empirical Modalities: Lessons For The Future Of International Investment, Susan D. Franck

Scholarly Articles

None available.

The Crossroads Of Investment Arbitration, Susan D. Franck

Scholarly Articles

None available.

Law And Atrocity: Settling Accounts In Rwanda, Mark A. Drumbl

Scholarly Articles

Ten years ago, genocide ravaged the tiny African nation of Rwanda. In the wake of this violence, Rwanda has struggled to reconstruct, rebuild, and reconcile. Law-in particular, criminal trials for alleged perpetrators of genocide- has figured prominently among various policy mechanisms in postgenocide Rwanda. Criminal trials for Rwandan genocidaires' aspire to achieve several goals. These include exacting retribution, promoting reconciliation, deterring future violence, expressing victims' outrage, maintaining peace, and cultivating a culture of human rights.2 In this Lecture, I examine the extent to which these trials attain these multiple, often competing, and largely overwhelming goals. Part I begins by setting …

Should An Attorney Be Required To Advise Client Of Adr Options?, Marshall J. Breger

Scholarly Articles

In recent years alternative dispute resolution (ADR) has moved from the margins of legal practice into the mainstream. It is no longer the exception for attorneys to employ or clients to request ADR services in almost every aspect of legal representation. This shift to the legal mainstream raises the question whether attorneys, as part of their general obligation to keep clients informed of their legal alternatives, should be required to advise their clients regarding ADR options. This paper will consider this question. In doing so, it will consider, at least inferentially, the character and purpose of ethics "rules."

International Commercial Arbitration: A Case Study Of The Areas Under Control Of The Palestinian Authority, Marshall J. Breger

Scholarly Articles

One necessary component to the success of the Israeli-Palestinian peace process is economic development and growth in the area under the control of the Palestinian Authority (PA). One of the principal requirements for economic growth, and quite possibly for the Palestinian Authority's economic survival, is foreign investment in the West Bank and Gaza (WBG). As they currently exist, laws concerning foreign investment in WBG are a quagmire. Indeed, it is a challenge for an investor to simply identify which law applies to which area, let alone to interpret the law. At the same time many of the protections often found …

Mandatory Arbitration: Where It Has Gone And Where It Has To Go, David A. Lipton

Scholarly Articles

No abstract provided.

Should Arbitrators Follow The Law?, David A. Lipton

Scholarly Articles

No abstract provided.

Realizing The Potential Of Arbitration In Federal Agency Dispute Resolution, Marshall J. Breger

Scholarly Articles

The Administrative Dispute Resolution Act of 1990 has given direct authorization to all federal government agencies to voluntarily agree to use alternative dispute resolution (specifically arbitration) in any type of dispute—whether disputes between the government and private parties, interagency matters or labor-management disputes within one agency. This law will be overseen by the Administrative Conference, which coordinates and advises agencies on the act's implementation. The Administrative Conference is a permanent federal agency established in 1964. Its purpose is to "improve the procedures of federal agencies so that they may fairly and expeditiously carry out their responsibilities."

Generating Precedent In Securities Industry Arbitration, David A. Lipton

Scholarly Articles

The author charts the progress made by the securities industry’s dispute resolution system as it went from judicial litigation to a system that relies almost exclusively on arbitration. Further advances were made by the adoption of the 1989 Rules Amendments, which, by introducing prehearing conferences and setting deadlines for document exchanges, cleared up many procedural issues. However, one serious problem remains: The present system does not provide a means to generate case precedent. The author suggests various ways to cure this defect.

Mandatory Securities Industry Arbitration: The Problems And The Solution, David A. Lipton

Scholarly Articles

Many of the perceived problems with the securities arbitration system do not reflect deficiencies in the operation of the current system, but rather are a result of the very qualities that make arbitration attractive. For example, participants in arbitration have a limited right of appeal from arbitration awards precisely because they contractually agreed to forego judicial litigation and instead have their disputes considered in a more expeditious and less expensive forum. It is reasonable to believe that if arbitration awards were appealable for the full range of reasons for which judicial decisions may be appealed, the efficiency of the arbitration …

Discovery Procedures And The Selection And Training Of Arbitrators: A Study Of Securities Industry Practices, David A. Lipton

Scholarly Articles

No abstract provided.

The Standard On Which Arbitrators Base Their Decisions: The Sro’S Must Decide, David A. Lipton

Scholarly Articles

Attorneys who practice in the arbitration system are presently in doubt as to whether arbitrators will base their award on commercial equitable judgment or on a strict adherence to legal precedence. The article first examines federal case law on the issue of extent to which arbitrators must follow the letter of the statutory law and the common law. It finds the “manifest disregard” doctrine enunciated in the Bobker decision has been subjected to several different interpretations. Examining the pros and cons of these various interpretations from the point of view of industry practicalities, the author finds that the arbitrators need …

The Teaching Of Alternative Dispute Resolution, Lisa G. Lerman

Scholarly Articles

No abstract provided.

Arbitration In The Securities Industry: Too Much Of A Good Thing?, David A. Lipton

Scholarly Articles

The study upon which this article is based was conducted in response to the explosive growth of the use of arbitration in the securities industry as a means of resolving broker/customer disputes. The study was designed to investigate whether the use that is being made of arbitration is efficient and, if inefficiencies were found, what procedures might be employed to screen out inefficient use.

This article was completed prior to the Supreme Court's recent resolution of the Dean Witter Reynolds, Inc. v. Byrd case. In light of that decision, it now appears likely that the concerns raised in the article …

Mediation Of Wife Abuse Cases: The Adverse Impact Of Informal Dispute Resolution On Women, Lisa G. Lerman

Scholarly Articles

This Article articulates a law enforcement critique of domestic violence mediation. It will explain the feminist view that mediation in abuse cases is based on misconceptions about the nature of wife abuse, and that mediation not only fails to protect women from subsequent violence, but also perpetuates their continued victimization.

The Article will recommend that other remedies be preferred over mediation. Recognizing that many programs will persist in mediation of wife abuse cases, however, the Article recommends that those programs should adopt procedures which will offer protection to victims of abuse, will make clear to the abuser that stopping the …

Note, Appearance Of Bias As Grounds For Vacating An Arbitrator’S Award – Implications Of Commonwealth Coatings Corp. V. Continental Casualty Co. For Labor Arbitration, Roger C. Hartley

Scholarly Articles

Commonwealth Coatings Corp. v. Continental Casualty Co. involved the arbitration of a dispute between two contractors. The reasoning of the opinion of the court contains possible implications for the review of labor arbitration awards challenged on the ground of alleged partiality of the arbitrator. The federal district courts find jurisdiction to vacate labor arbitration awards under Section 301 of the Labor Management Relations Act (LMRA), but nowhere in the LMRA is there an express test of partiality the courts can apply. Section 10 of the United States Arbitration Act provides a statutory test of "evident partiality,"'-but it has been held …