Law Commons^™

The Shari'a Factor In International Commercial Arbitration, Faisal M. Kutty

ExpressO

The world has witnessed a phenomenal growth in commercial disputes transcending national borders due to our increasingly interrelated and globalized world economy. In addition to issues in interpretation of commercial agreements and practices, differences in custom, language, culture and religion will continue to fuel conflicts and disagreements between commercial players. Over the last few decades there have been growing commercial interaction between Western companies and their Middle Eastern counterparts. Given this interaction and the great geo-political and economic importance of this region, it is imperative that Western lawyers and dispute resolution professionals have a reasonable grasp of the general principles …

Fishing For Adr, David Bryson, Nadja Alexander

Research Collection Yong Pung How School Of Law

As the mediation field in Australia and abroad flourishes, so too do publications on the topic. However a plethora of publications has consequences for any academic and professional field. On one hand it means that readers are indulged with a rich array of information, views and opinions; on the other it requires readers to be much more sophisticated and discriminatory in their choice of reading.

Natural Forum And The Elusive Significance Of Jurisdiction Agreements, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

The Singapore court's power to stay its proceedings by reason of its not being the appropriate forum the proceedings ought not to be continued is underpinned by the common law principle enunciated in The Spiliada that generally a trial should be heard in its natural forum. The Rainbow Joy adds significantly to Singapore law on forum non conveniens on two important points. First, it establishes that it is not necessary to show that the alternative forum abroad is constituted as a court of law. Secondly, the case establishes that whether there is a defense claim on the merits is an …

Summary Of Nelson V. Heer, 121 Nev. Adv. Op. 81, Denise Balboni

Nevada Supreme Court Summaries

Motion to support a stay pending an appeal by security other than a supersedeas bond.

Detection Avoidance, Chris William Sanchirico

ExpressO

In practice, the problem of law enforcement is half a matter of what the government does to catch violators and half a matter of what violators do to avoid getting caught. In the theory of law enforcement, however, although the state’s efforts at "detection" play a decisive role, offenders’ efforts at "detection avoidance" are largely ignored. Always problematic, this imbalance has become critical in recent years as episodes of corporate misconduct spur new interest in punishing process crimes like obstruction of justice and perjury. This article adds detection avoidance to the existing theoretical frame with an eye toward informing the …

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble:" A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N. C. Smalkin

Faculty Scholarship

Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary’s “loss of focus” on the core function of trying jury cases; the business community’s loss of interest in jury adjudication (“opting out of the legal system altogether” in favor of arbitration); Congress’s “marginalizing the district court judiciary”; and …

Wrong-Sizing International Justice? The Hybrid Tribunal In Sierra Leone, Chandra Lekha Sriram

Faculty Scholarship

As institutions of international justice proliferate, so do disputes about their legitimacy, and about what shape they ought to take. As truly international tools such as the International Criminal Court and the exercise of universal jurisdiction face political and practical challenges, some scholars and practitioners have advocated a distinct institutional solution: the hybrid court. These are courts that are neither purely national nor international, but rather that pursue accountability in the country where abuses and crimes occurred, but with both national and international staff, and utilizing a mixture of national and international law. Many have suggested that these tribunals represent …

Summary Of Wood V. Safeway, Inc., 121 Nev. Adv. Op. 73, Michael Shalmy

Nevada Supreme Court Summaries

A mentally handicapped female working for Safeway Stores, Inc. was sexually assaulted at work by an employee of a company that provided janitorial services for Safeway. The assaults occurred in a storage room and in the parking lot while she was gathering shopping carts. She filed a complaint against Safeway and the janitorial company, Action Cleaning, alleging five causes of action as a result of the sexual assault. The district court granted summary judgment in favor of Safeway, determining that Safeway was immune from suit because of coverage provided by the Nevada Industrial Insurance Act (the “NIIA”). The district court …

Re Aliant Telecom Inc And Ac & Twu (Macdonald), Innis Christie

Innis Christie Collection

Union Grievance 04-01, dated July 21, 2004, on behalf of the Grievor, Robert MacDonald, alleging that the Employer discharged the Grievor in violation of Article 2.1 of the Collective Agreement between the parties effective January 1, 1999 — January 1, 2002, which the parties agree is the Collective Agreement applicable here. At the outset of the hearing in this matter the parties agreed that I am properly seized of it, that I should remain seized after the issue of this award to deal with any matters arising from its application and that all time limits, either pre-or post-hearing, are waived. …

California’S New Ethics Standards: A Hot Bed Of Controversy, Rebecca Callahan

ExpressO

The article examines California’s new ethics rules and examines the cases which have been decided to date challenging and applying those rules. The stated goals of the New Ethics Rules are “to inform and protect participants in arbitration, and to promote public confidence in the arbitration process.” This is a laudable goal since arbitration is a private process that is dependent on public acceptance. The heart of the controversy concerning the New Ethics Rules revolves around the practical inconvenience and cost burden associated with compliance. The enclosed article concludes that such a burden goes hand-in-hand with the privilege of being …

Facework In Mediation: The Need For "Face" Time, Rebecca Callahan

ExpressO

This paper was written for my Communication and Conflict class in 2005. The premise of the article is that mediators are intervenors in a dispute who, in addition to assessing the climate of the parties’ pre-mediation relationship, dealing with problems of perceptions, being on the lookout for imbalances of power, correcting false attributions and shepherding the parties’ negotiations must be prepared to anticipate, identify and handle the below-surface image needs or perceptions of the parties. The enclosed article discusses “facework” as a communication behavior that is evaluated and posits that “face” and “facework” strategies should be considered in any mediation …

Easing The Burden: Mediating Misdemeanor Criminal Complaints, Gabriel H. Teninbaum

ExpressO

Overburdened courts are causing critical breakdowns in the criminal justice system. However, some jurisdictions are developing creative programs to ease the burden on courts. This paper focuses on mediation programs by which courts divert criminal cases away from traditional prosecution and allow a victim-offender mediation to occur as an alternative to trials for alleged criminal acts. The new model is beginning to work: annually more than nine thousand cases are referred out of district courts by district attorneys and judges to dispute settlement centers; over seven thousand or more are resolved prior to possible court involvement, and mediation is helping …

International Decisions: Occidental Exploration And Production Company V. The Republic Of Ecuador, Susan Franck

Articles in Law Reviews & Other Academic Journals

Occidental v. Ecuador is the first claim under a bilateral investment treaty claim involving tax issues. This case comment analyzes the tribunal's award and offers a critique of both the analysis and the conclusion. This comment suggests that the tribunal may have gone further than necessary in its analysis of arbitrary measures impairing investment, failed to engage in a sector-by-sector analysis of national treatment, and compressed the analysis of separate rights into one broad test for evaluating fair and equitable treatment. The comment concludes that Occidental may best be understood as confined to its unique facts lest there be larger …

Finality Versus Consistency: Does Investor-State Arbitration Need An Appellate System, Ian Laird, Rebecca Askew

The Journal of Appellate Practice and Process

No abstract provided.

Pre-Argument Settlement At The Michigan Court Of Appeals: A Secret Too Well Kept, Jeremy L. Fetty

The Journal of Appellate Practice and Process

No abstract provided.

The Nature And Enforcement Of Investor Rights Under Investment Treaties: Do Investment Treaties Have A Bright Future, Susan Franck

Articles in Law Reviews & Other Academic Journals

The number of investment treaties has surged in the past decade. Even now, the United States and Canada are actively engaged in programs designed to facilitate the completion of multilateral treaties such as the Dominican Republic-Central American Free Trade Agreement (CAFTA-DR) and Bilateral Investment Treaties (BITs). These investment treaties act like economic bills of rights, which grant foreign investors substantive protections and procedural rights to facilitate investment. Sovereigns, meanwhile, may benefit from these treaties by obtaining increased foreign direct investment, which may promote the development of their country's infrastructure 6 and offer citizens basic services including access to clean water, …

Market Solutions To Market Problems: Re-Examining Arbitral Immunity As A Solution To Unfairness In Securities Arbitration, Peter B. Rutledge

Scholarly Works

This paper addresses the fairness of securities arbitrations in the United States. A few decades ago, such a topic would have been relegated to the academic hinterlands. For the first fifty years following the enactment of the nation's securities laws, pre-dispute arbitration agreements between investors and the securities industry were not enforceable. In a series of decisions in the late 1980s, the Supreme Court reversed course and held that such disputes were indeed arbitrable. Following those decisions, arbitration quickly became the preferred method of dispute resolution for cases arising under the nation's securities laws, especially disputes between investors and broker-dealers. …

The Promise And Perils Of Collaborative Law, John M. Lande

Faculty Publications

Getting people to use an interest-based approach in negotiation has been a difficult problem. Experts provide helpful suggestions for changing the game, though these are usually limited to case-by-case efforts within a culture of adversarial negotiation. Collaborative law (CL) is an important innovation that establishes a general norm of interest-based negotiation and intentionally develops a new legal culture. This article describes CL's promise and potential perils, focusing particularly on the perils to complement the literature touting the promise.

Summary Of Whealon V. Sterling, 121 Nev. Adv. Op. 66, Jarrod Rickard

Nevada Supreme Court Summaries

Appellant agent sought review of a summary judgment from the Eighth Judicial District Court, which ruled in favor of respondent entertainer in a contract dispute.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Sailing Around Erie:The Emergence Of A Federal General Common Law Of Arbitration, Kenneth Dunham

ExpressO

This paper traces the history of American arbitration from the common law to the FAA. It discusses the FAA as a procedural act prior to Southland v. Keating and as a substantive law act following Southland. It discusses the Erie doctrine as applicable to federal courts and state law preemption. The article concludes that Southland by-passed Erie using the Commerce Clause and the Supremacy Clause to create a federal common law of arbitration.

The Free Trade Area Of The Americas: The Great Challenge For Dispute Resolution, Salvador J. Juncadella, Matthew S. Poulter

Brigham Young University International Law & Management Review

No abstract provided.

Finding The Contract In Contracts For Law, Forum, And Arbitration, William John Woodward

ExpressO

Contract provisions specifying the law or forum (either judicial or arbitration) have begun appearing in litigated cases, as businesses have pressed many courts for their enforcement against consumers. In at least some of the cases, enforcement of a choice of law provision results in the displacement of the consumer’s home state protection by the lesser consumer protection of the State of the form drafter’s choosing. This phenomenon raises serious problems of federalism and local control of consumer protection. But while considerable scholarly attention has been lavished on so-called “mandatory arbitration” in this context, much less has attempted to improve our …

How And Understanding Of The Second Personal Standpoint Can Change Our Understanding Of The Law: Hart's Unpublished Response To Exclusive Legal Positivism, Robin B. Kar

ExpressO

This Article describes recent developments in moral philosophy on the “second personal standpoint,” and argues that they will have important ramifications for legal thought. Moral, legal and political thinkers have, for some time now, understood important distinctions between the first personal perspective (of deliberation) and the third personal perspective (of observation, cause and effect), and have plumbed these distinctions to great effect in their thought. This distinction is, in fact, implicit the law and economics movement’s “rational actor” model of decision, which currently dominates much legal academic thought. Recent developments in value theory due to philosopher Stephen Darwall suggest, however, …

Summary Of Szydel V. Markman, 121 Nev. Adv. Op. 47, Hagar Labouz

Nevada Supreme Court Summaries

Appellant Szydel brought a medical malpractice claim against Dr. Markman after he left a surgical needle inside her breast following a surgical procedure. Szydel and her husband filed a malpractice claim in district court and Dr. Markman moved to dismiss because the complaint was not accompanied by a medical expert’s affidavit, as required by statute. Szydel claimed that her action was filed under Nevada’s res ipsa loquitur statute and thus did not require a medical expert’s affidavit.

Summary Of Kahn V. Morse & Mowbray, 121 Nev. Adv. Op. 48, Hagar Labouz

Nevada Supreme Court Summaries

This action arises out of a business agreement between the Kahns and their son, Eric. The Kahns violated the agreement with Eric by selling their business to their other son, Frank. The Kahns hired Byrd and his firm, Morse & Mowbray, to represent them. Shortly thereafter the parties reached a settlement, and the Kahns reneged on the settlement. Eric filed an action against the Kahns for specific enforcement of the settlement and Byrd and his firm declined to contest Eric’s contentions regarding the settlement. The district court held a hearing for specific enforcement of the settlement and found that all …

Summary Of Lee V. Ball, 121 Nev. Adv. Op. 38, Jared R. Gibb

Nevada Supreme Court Summaries

This case involved an appeal from a district court judgment in a personal injury case, entered pursuant to a jury verdict which initially awarded the plaintiff $1,300 in damages. The plaintiff subsequently requested a new trial or, in the alternative, additur. The district court awarded the plaintiff an additur of $8,200 and prejudgment interest, without offering the defendant a new trial on damages.

Law As A Healing Profession: The “Comprehensive Law Movement”, Susan Daicoff

ExpressO

No abstract provided.

The Cotton And Sugar Subsidies Decisions: Wto’S Dispute Settlement System Rebalances The Agreement On Agriculture, Stephen J. Powell, Andrew Schmitz

Stephen Joseph Powell

Acting on a complaint by Brazil, a WTO dispute settlement panel ruled September 8, 2004, that a variety of support programs for upland cotton exceeded reduction commitments made by the United States when it signed the 1995 WTO Agriculture Agreement and were thus not immune from challenge under the WTO Subsidies Agreement, with which the Panel then found these programs inconsistent.

The Panel's conclusions, if upheld by the WTO's Appellate Body, will have significant impact on agricultural policies for specialty and program crops of the United States, Europe, and Japan. This paper analyzes the decision, notable as the first to …