Law Commons^™

Supreme Court’S Role Vis A Vis Indian Arbitration And Conciliation Act, 1996, Dev Chopra

dev chopra

This article examines some aspects of the growth of judicial law making by the Supreme Court in the last twelve years of the working of the Indian Arbitration and Conciliation Act, 1996. It also examines the negative role of the Supreme Court in taking the law backward thus preventing the growth of international trade and commerce. It also shows that just as politicians and bureaucrats do not give up power, judges are no exception.

Análise Crítica Do Julgamento Por Atacado No Superior Tribunal De Justiça (Lei Nº 11.672/08 Sobre Recursos Especiais Repetitivos), Nelson Rodrigues Netto

Nelson Rodrigues Netto

This study aims at analyzing the law enforcement system for dispute resolution involving multiple and repeated special appeals before the Superior Court of Justice.

O presente estudo tem por objetivo analisar o sistema legal de solução de conflitos envolvendo múltiplos recursos especiais repetidos perante o Superior Tribunal de Justiça.

Direct Application Of International Commercial Law In Chinese Courts: Intellectual Property, Trade, And International Transportation, Jie Huang

Jie Huang

Different from scholarship that focuses on the relationship between China and International Law regarding territory, armed conflicts, human rights violations, this article explores the relationship between China and International Law in a commercial setting. It explores how Chinese courts apply international commercial law in adjudicating cases involving foreign factors. Moreover, this article goes beyond contemporary scholarship that concerns international commercial law and China but only focuses on the text of Chinese statutes and judicial interpretations: it elaborates how courts apply statutes and judicial interpretations in actual adjudications through cases studies. By covering cases decided by the Supreme People’s Court and …

A Proposal For Establishing Specialized Federal And State "Takings Courts", John Martinez

John Martinez

A Proposal for Establishing

Specialized Federal and State "Takings Courts"

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

Takings doctrine is a mess. This article proposes that we just accept that -- and establish specialized federal and state "takings courts" for adjudicating takings claims.

In 1978 the United States Supreme Court confessed that takings analysis is hopelessly ad hoc. And in 2005, the Court abrogated a test for takings which it had followed for 25 years. Indeed, some scholars have even resigned themselves to embracing vagueness as a virtue in takings …

Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy

Michael H LeRoy

Judicial review of arbitration awards is highly deferential, but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed awards. Nearly the same result was observed for a sub-sample of 44 employment discrimination awards under Title VII. By comparison, federal appeals courts in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.

Why are the rulings of Article III judges scrutinized more than the awards of citizen-arbitrators? What does this mean when companies can avoid Article III court rulings by …

The Tower Of Bazzle: Why Due Process Requires A Hybrid Model Of Classwide Arbitration, Zachary Allen

Zachary Allen

During the late 1970s the United States witnessed the beginning of an uncomfortable courtship between two powerful dispute resolution mechanisms: arbitration and the class action. In 2003, the U.S. Supreme Court announced its approval of their marriage, referred to as classwide arbitration, in Green Tree Financial Corporation v. Bazzle. In Bazzle, the Court held that where an arbitration agreement is silent regarding classwide arbitration, the arbitrator—not the court—should interpret the agreement to determine whether it permits classwide arbitration.

Unfortunately, the Court’s blessing was mixed. Bazzle is on infirm ground for two reasons. First, the Court could only muster a 4-1-4 …

The Global Advocate: From Ethical Anarchy To Discernable Duties, Catherine A. Rogers

Catherine A Rogers

This Article identifies the emergence of "global advocates" as an important force on the world legal stage. By definition and design, these global advocates operate in a professional “space” that is distinct from the jurisdiction in which they are licensed and stretches beyond the jurisdictional boundaries of any particular tribunal. They maneuver in the nooks and crannies, the overlap and the inconsistencies between legal systems. Legal arbitrage is a core feature of their daily practice, and perhaps one of their most essential professional skills. This detachment from their licensing jurisdiction raises fundamental questions about the origin and object of their …

To Hell With Kyoto, It’S Time For Something Real!, Altdus Ray Frank

Altdus Ray Frank

The intended gift of clean air and pristine atmosphere through the inception of the Kyoto Protocol was meant to be a measure to protect the environment for not only the present generation, but the future as well. Instead of accepting this gift, humanity has yet again showed its darker side; shredding the ambitious purpose of this document and crucifying its creators as being overzealous, overbearing fools. People must come to terms and understand that environmental catastrophe is the single greatest threat faced by humanity today.

It is time for a new dawn, a new era where, the global community has …

Retooling Economic Sanctions, E. Michael Abler

E. Michael Abler

The international system stands at a crossroads. To the right, the road leads towards a New Internationalism defined by international norms, transnational organizations, and collective security. To the left, the road continues along the traditional realpolitik path marked by the preeminence of nation-state sovereignty, national self-interest, and balances of power. A critical factor in determining which road to take is how well the current collective security arrangement keeps the peace. That arrangement is centered on the U.N. Charter and the Security Council, which has relied heavily on economic sanctions to addresses breaches of peace and security. Critics contend that economic …

Manipulating Court Doctrine For The Good Of The Common Law And Compulsory Arbitration, Richard L. Barnes

richard l barnes

No abstract provided.

The Perils Of Foreign Contracating In China, Debra J. Reed

Debra J Reed

QUESTION PRESENTED

Whether a business contract executed between a foreign party and a Chinese party is enforceable in the courts of the People’s Republic of China?

BRIEF ANSWER

Probably not. Foreign party reliance on Chinese courts to enforce their contracts is premature because China is not yet a rule of law country. Chinese courts do not exercise judicial independence. Political domination by the Chinese Communist Party, CCP, over the courts, and Chinese local protectionism both influence the outcome of cases. Moreover, the Chinese legal system is wrought with corruption. Because inexperienced judges adopt new laws at varying speeds and apply …

Is Arbitration Under Attack? Exploring The Recent Judicial Skepticism Of The Class Arbitration Waiver And Innovative Solutions To The Unsettled Legal Landscape, Ramona L. Lampley

Ramona L. Lampley

This article explores the hotly debated field of enforcing arbitration clauses with binding class-action waivers. While the enforcement of arbitration clauses generally, and those with class-action waivers specifically, has undergone much debate in the past three years in both the academic and judicial fora; this article casts a new look on the analysis. Instead of advocating simply for or against the enforcement of the class-action waiver, this article analyzes the dialogue between the consumer products industry and the consuming public, via the court system. This dialogue has resulted in a “new wave” of consumer products arbitration agreements: agreements that are …

Should Parties’ Disclosure Requirements For Arbitrators Be Honored By Courts: Positivesoftware Solutions, Inc. V. New Century Mortgage Corporation, Leonard E. Gross, Howard L. Wieder

Leonard E. Gross

In this article, we criticize the decision of the Fifth Circuit Court of Appeals in PositiveSoftware Solutions, Inc. v. New Century Mortgage Corporation. In PositiveSoftware, the court confirmed an arbitration award even though the arbitrator had failed to disclose rather significant facts about his relationship to one of the parties. Our thesis is that courts should enforce the arbitrator disclosure requirements to which the parties have agreed by not confirming arbitration awards when arbitrators fail to comply with those disclosure requirements. In adopting the Federal Arbitration Act, Congress intended to encourage the use of arbitration. The net effect of refusing …

The British Approach To Consumer Financial Disputes: A Model For Reform In Insurance Law And Beyond, Daniel Benjamin Schwarcz

Daniel Benjamin Schwarcz

Much of insurance law and regulation is concerned with compensating consumers who have been wrongly denied coverage. But policyholders nonetheless have relatively few realistic options for challenging an insurer’s adverse coverage determination. Litigation is often too slow and costly for those who have recently suffered significant financial loss. Meanwhile, the alternative dispute resolution options that do exist – such as the mediation services that insurance regulators offer or the existing variants of insurance arbitration – are generally either ineffective or unavailable for most disputes. This Article proposes a new way forward by looking to the United Kingdom’s innovative Financial Ombudsman …

Bloodstains On A "Code Of Honor", Kenneth Lasson

Kenneth Lasson

Abstract In the real world of the Twenty-first Century, deep biases against women are prevalent in much of Muslim society. Although there is no explicit approval of honor killing in Islamic law (Sharia), its culture remains fundamentally patriarchal. As unfathomable as it is to Western minds, “honor killing” is a facet of traditional patriarchy, and its condonation can be traced largely to ancient tribal practices. Justifications for it can be found in the codes of Hammurabi and in the family law of the Roman Empire. Unfortunately, honor killings in the Twenty-first Century are not isolated incidents, nor can they be …

A Study Of Interest, John Gotanda

John Y Gotanda

In recent years, a number of tribunals, mainly those deciding investment disputes, have re-examined traditional practices concerning the awarding of interest, particularly whether interest should be awarded at market rates and on a compounded basis. However, many tribunals deciding transnational contracts disputes continue to follow the practice of applying national laws on interest, which often results in the application of domestic statutory interest rates calling for a fixed rate of interest to accrue on a simple as opposed to compound basis. These statutory rates often do not change to reflect economic conditions and thus may under compensate or over compensate …

In Defense Of The International Treaty Arbitration System, Daniel S. Meyers

Daniel S Meyers

The past two decades have witnessed an explosion of bilateral and multilateral investment treaties, and of arbitration claims brought by private individuals and entities against sovereign States pursuant to such treaties. Indeed, it is fair to characterize the investment treaty arbitration system (the "ITA system") as one of the most rapidly-developing phenomena in international law. And, as occurs in response to every significant development in international law (or law more generally), the recent maturation of the ITA system has been met with a chorus of scholarly criticism and calls for reform. While such critiques can be integral to the healthy …

Why Arbitrate? The Questionable Quest For Efficiency In Hallstreet Street Associates, Llc V. Mattel, Inc., 550 U.S. __ (2008), David K. Kessler

David K Kessler

The Federal Arbitration Act (FAA) makes arbitration agreements between private parties legally enforceable. The policy favoring arbitration underlying the FAA has been justified as serving two ends: it protects freedom of contract, and it creates an efficient alternative dispute resolution system. Previous decisions by the Court have indicated a belief that, when those two goals come into conflict, the result that preserves freedom of contract should prevail. In Hallstreet Associates, L.L.C. v. Mattel, Inc., however, a recent case involving the Federal Arbitration Act, the Court's decision preserved perceived efficiency at the expense of freedom of contract. The Court held that …

Cultural Conflicts, Annelise Riles

Cornell Law Faculty Publications

This article builds upon insights from contemporary anthropology to rethink the field of conflicts as a matter of cultural conflict. This approach shifts the analysis away from the dominant approaches in the discipline, which take as their primary metric either questions of state power or of individual rights. Drawing on a case of conflict between Native American legal norms and U.S. state and federal law, this article argues for a conflicts methodology that takes seriously the role of cultural description in the process of cultural adjudication. To do so, in turn will require us to adopt a more sophisticated, flexible, …

Education For Judicial Aspirants, Keith Fisher

Keith R. Fisher

Introductory judicial education (IJE) is an avenue for improving both appointive and elective systems of judicial selection. The impetus for considering this topic can be traced back to a lingering unease with judicial selection and the ongoing (though now somewhat stagnant) debate over merit selection. Moreover, changes in the nature of law practice and the judicial role over the past several decades have rendered the gap between the two activities increasingly large. IJE is an effort to maximize the chances that judicial selection, by any process, will result in a judiciary composed of competent individuals who are not only philosophically …

In The Name Of Efficiency, Scott Shackelford

Scott Shackelford

India, the most populous and diverse democracy in the world, has a legal system to match. This system, a composition of ancient Hindi panchayats (village assemblies), Islamic law, and a formal British judiciary, has long been under immense strain, stifling economic competiveness and the pursuit of justice alike. As Lord Delvin famously quipped “If our business methods were as antiquated as our legal methods we should be a bankrupt country.” There are currently nearly 25 million cases pending in Indian courts, some of which have been appealed and argued for more than 20 years. Meanwhile, India spends only .2 percent …

A Economia Da Arbitragem: Escolha Racional E Geração De Valor, Bruno Meyerhof Salama, Antonio Celso Pugliese

Bruno Meyerhof Salama

"Every Day And In Every Way, We Are Becoming Meta And Meta:" Or How Communitarian Bargaining Theory Conquered The World (Of Bargaining Theory), Robert J. Condlin

Robert J. Condlin

Debate over the relative merits of communitarian and adversarial theories of dispute negotiation has pre-occupied legal bargaining scholarship for at least twenty years. Seen as a negotiation, this debate makes it clear that communitarians are by far the better bargainers. In a move one might think more characteristic of adversarial bargainers, communitarians changed the definition of bargaining effectiveness by reconstituting the world in which bargaining operates (the meta move of the title – in communitarian terms they “changed the game by changing the frame”), and in the process made adversarial bargaining obsolete. Many of the arguments and maneuvers used in …

"What's Really Going On?" A Study Of Lawyer And Scientist Inter-Disciplinary Discourse, Robert J. Condlin

Robert J. Condlin

No abstract provided.

Why Arbitrate? The Questionable Quest For Efficiency In Hallstreet Street Associates, Llc V. Mattel, Inc., David K. Kessler

David K Kessler

The Federal Arbitration Act (“FAA”) makes arbitration agreements between private parties legally enforceable. The policy favoring arbitration underlying the FAA has been justified as serving two ends: it protects freedom of contract, and it creates an efficient alternative dispute resolution system. Previous decisions by the Court have indicated a belief that, when those two goals come into conflict, the result that preserves freedom of contract should prevail. In Hallstreet Associates, L.L.C. v. Mattel, Inc., however, a recent case involving the Federal Arbitration Act, the Court’s decision preserved perceived efficiency at the expense of freedom of contract. The Court held that …

Reaffirming The Rights Of Foreign Investors To The Protection Of Icsid Arbitration: Sempra Energy International V. The Argentine Republic, Daniel Krawiec

Daniel A Krawiec II

Earlier this decade, the Argentine government responded to a substantial domestic economic crises by passing several emergency laws and unilaterally changing the terms of its investment agreements with foreign investors. Sempra v. Argentine Republic is an important case because the tribunal decisively reaffirmed the right to ICSID arbitration for American investors harmed by Argentina’s actions. Furthermore, the tribunal held that the U.S.-Argentina bilateral investment treaty provided substantial substantive investment protection.

Dispute Resolution And The Vanishing Trial: Comparing Federal Government Litigation And Adr Outcomes, Lisa Blomgren Bingham, Tina Nabatchi, Jeffrey Senger, Michael Scott Jackman

Lisa Blomgren Bingham

This study compares litigation and alternative dispute resolution (ADR) in civil cases handled by Assistant United States Attorneys (AUSAs) during the period 1995 to 1998. The findings indicate that that use of ADR can be an efficient and effective procedural solution to the problems of time and cost in the justice system without sacrificing the quality of macrojustice. When ADR was used, 65% of cases settled (only 29% of cases settled when it was not used). Significantly more cases settled when ADR was voluntary than when it was mandatory (71% vs. 50%), and tort cases settled with more frequency than …

Can We Talk?, Don Peters

Don Peters

CAN WE TALK: OVERCOMING BARRIERS TO MEDIATING PRIVATE TRANSBORDER COMMERCIAL DISPUTES IN THE AMERICAS Don Peters

This article examines cognitive and cultural barriers creating the comparatively infrequent use of mediation to resolve private, transborder commercial disputes in the Americas. It begins by analyzing the challenges of transborder commercial litigation. It then develops and supports the claim that international arbitration, the most frequently used transborder commercial dispute resolution method , suffers from many of litigation’s disadvantages, including excessive expense and delay, sacrificing outcome control, damaging or ending rather than preserving and improving commercial relationships, and using legalistic, rights based perspectives which …

Power And Cooperation: Understanding The Road Towards A Truth Commission, Ming M. Zhu

Ming M Zhu

Truth commissions, usually described as a softer transitional justice alternative to trials, gained traction in academic circles following the establishment of South Africa’s Truth and Reconciliation Commission. Though they are praised for their value in societal reconciliation and widely recognized for their flexibility; little is understood of their causal factors or requirements. This Article turns to this hole in the research and examines the effects of one potential causal variable, the balance of power between the warring parties. Through an in-depth examination of four case studies, El Salvador, Guatemala, Peru, and East Timor, this Article finds that truth commissions are …

Looking Into A Crystal Ball: Courts' Inevitable Refusal To Enforce Parties' Contracts To Expand Judicial Review Of Non-Domestic Arbitral Awards, Eric S. Chafetz

Eric S. Chafetz

Courts have not addressed whether parties can contract to expand the judicial review provisions in Article (“Art.”) V of the New York Convention (the "NY Convention"). When courts do address the issue, they will rely on the resolution of two prior issues: (1) whether parties can rely on the vacatur provisions in Art. 1 of the Federal Arbitration Act (“FAA”), in a vacatur proceeding under the NY Convention and (2) whether parties can rely on manifest disregard of the law and other grounds of review implied under Art. 1 of the FAA, in a vacatur proceeding under the NY Convention. …