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2006

Dispute Resolution and Arbitration

Journal

Trials

Articles 1 - 2 of 2

Full-Text Articles in Law

Not Quite A World Without Trials: Why International Dispute Resolution Is Increasingly Judicialized, Andrea Kupfer Schneider Jan 2006

Not Quite A World Without Trials: Why International Dispute Resolution Is Increasingly Judicialized, Andrea Kupfer Schneider

Journal of Dispute Resolution

The focus of this brief essay is to first outline some of the factors leading to increasing judicialization on the international level where public disputes (disputes between countries) are increasingly resolved by a neutral third party. In some cases, this increased judicialization includes arbitration (which we might put under the category of ADR in the U.S.). However, the use of arbitration at the international level is not ADR as we would define it in the U.S., since the important element at the international level is that the decision-making power is handed over to a third party-whether we call that a …


Designer Trials, Elizabeth Thornburg Jan 2006

Designer Trials, Elizabeth Thornburg

Journal of Dispute Resolution

This article is a thought experiment, or maybe a nightmare, about the intersection of freedom of contract and the trials that have not vanished. Could contracting parties effectively agree in advance of a dispute that any litigation of the case will comply with certain rules? Would such an agreement be enforced even in a contract of adhesion? If so, parties with sufficient bargaining leverage could design away many of the characteristics of litigation that they find unappealing without the need to resort to private processes. The result: a designer trial with the procedural deck stacked in favor of the party …