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Full-Text Articles in Law
Transparency In International Commercial Arbitration, Catherine A. Rogers
Transparency In International Commercial Arbitration, Catherine A. Rogers
Journal Articles
Scholars have long been making the case for expanding transparency in the international commercial arbitration system, but recently these proposals have taken on a greater sense of urgency and an apparent willingness to forcibly impose transparency reforms on unwilling parties. These new transparency advocates exhort the general public's stakehold in many issues being arbitrated, which they contend necessitates transparency reforms, including compulsory publication of international commercial arbitration awards.
In this symposium essay, I begin by developing a definition of transparency in the adjucatory setting, and conceptually distinguishing from other concepts, like "public access" and "disclosure," which are often improperly treated …
Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong
Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong
Faculty Publications
Britain's Lord Denning once said that “as a moth is drawn to the light, so is a litigant drawn to the United States.” Certainly, as a pro-arbitration state and a signatory to various international conventions concerning the enforcement of foreign arbitral awards, the United States seems a natural place to bring an action to enforce an arbitral award against a foreign state or state agency. However, suing a sovereign has not traditionally been a simple task in the United States or elsewhere. Most nations grant foreign states the presumption of immunity, thus denying that their domestic courts have jurisdiction to …
Vanishing Trials: An English Perspective, Robert Dingwall, Emilie Cloatre
Vanishing Trials: An English Perspective, Robert Dingwall, Emilie Cloatre
Journal of Dispute Resolution
This paper reviews the recent history of civil litigation in England and Wales. While previous work by Professor Kritzer has shown an absolute decline in trials over the last fifty years, with some fluctuation around this trend, this comment suggests that this may now have bottomed out. Given the evidence of a simultaneous, and continuing, decline in the number of claims filed, it may even be the case that trials are, at least temporarily, playing a larger part in the civil justice system than they have for many years. In contrast to the experience in the U.S., these changes seem …
Not Quite A World Without Trials: Why International Dispute Resolution Is Increasingly Judicialized, Andrea Kupfer Schneider
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 …
Parties To International Commercial Arbitration Agreements Beware: Bankruptcy Trumps Supreme Court Precedent Favoring Arbitration Of International Disputes, Lindsay Biesterfeld
Parties To International Commercial Arbitration Agreements Beware: Bankruptcy Trumps Supreme Court Precedent Favoring Arbitration Of International Disputes, Lindsay Biesterfeld
Journal of Dispute Resolution
Phillips v. Congelton (In re White Mountain Mining Co.), presents a heightened version of the conflict between the general policy favoring enforcement of arbitration agreements and the policy favoring resolution of bankruptcy-related claims in the bankruptcy court proceedings as the case involves a dispute over the enforcement of an international agreement to arbitrate a claim that is a "core" bankruptcy proceeding. In Phillips, the Fourth Circuit analyzed the underlying purposes of both the bankruptcy code and the federal arbitration statutes, and resolved the conflicting purposes of the two by giving greater deference to the policy favoring resolution of bankruptcy-related claims …
Vanishing Or Increasing Trials In The Netherlands, Carolien Klein Haarhuis, Bert Niemeijer
Vanishing Or Increasing Trials In The Netherlands, Carolien Klein Haarhuis, Bert Niemeijer
Journal of Dispute Resolution
In this article, we will address the question of whether something like vanishing trials exists in the Netherlands. This could be the case, as some of the causes of the decline in the number of trials advanced by Galanter are also observed in the Netherlands. ADR is gaining popularity, the costs of court procedures are on the rise, and there clearly exists a development toward "managerial justice."