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Consumers Want To Be In Europe; Corporations Want To Be In The U.S.: How To Reform Mandatory Consumer Arbitration Agreements To Be Fair To Both Parties, Kelly Parfitt

Kelly Parfitt

Arbitration is a popular method of resolving legal disputes between businesses. However, in the last few years, corporations have begun putting mandatory consumer arbitration agreements in small print on sales contracts and receipts for consumer goods, credit cards, and mortgages. Consumers are forced to pay fees much higher than court costs, depending on the case. An arbitrator will do hundreds of cases with the same corporations, be familiar with and even in some cases be affiliated with the corporation. This system results in the overwhelming majority of cases being won by corporations. But in the European Union, consumers are given …

International Commercial Arbitration And The Transformation Of The Conflict Of Laws Theory, Markus A. Petsche

markus a petsche

No abstract provided.

Legal Bargaining Theory's New "Prospecting" Agenda: It May Be Social Science, But Is It News?, Robert J. Condlin

Robert J. Condlin

In the good old days legal bargaining scholarship was based mostly on negotiator war stories exuberantly told. The social-scientific study of the subject did not begin in earnest until the nineteen-seventies. Since then, however, the literature of storytelling has gone into a pronounced eclipse and social-scientific study is now the principal scholarly game in town. This article questions the wisdom of this shift, almost seismic in its proportions, and argues that it is too soon to jump on the social science bandwagon. Discussion focuses on the uses made of the Prospect Theory of Daniel Kahneman and Amos Tversky and the …

Judicial Politics And International Investment Arbitration: Seeking An Explanation For Conflicting Outcomes, David Schneiderman

David Schneiderman

International investment arbitration has been described as a private system of justice addressing matters of high public policy. Yet, despite the very high stakes involved – in terms of both policy room and monetary implications – tribunal awards are sometimes difficult to reconcile. This conflict usually is explained with reference to the fact that these are ad hoc tribunals addressing specific disputes arising under particular investment treaties. Not so easily explained are conflicting tribunal awards drawing on virtually identical facts, invoking the same treaty text, where arbitrators seemingly change their mind from one case to the next without any explanation. …

Attorneys' Fees Agonistes: The Implications Of Inconsistency In The Awarding Of Fees And Costs In International Arbitrations, John Y. Gotanda

Working Paper Series

The awarding of arbitration costs and attorneys’ fees in international arbitrations is often arbitrary and unpredictable. In one recent investment arbitration where the tribunal deciding a case under the auspices of the international Centre for the Settlement of Investment Disputes (ICSID) had broad discretion to award costs and fees, the tribunal allocated arbitration costs evenly amongst the claimant and respondent and required each party to bear its own fees and expenses, even though the claimant prevailed. In another case where the claimant was successful on its substantive claim, the ICSID tribunal ordered the respondent to pay the claimant US$6 million …

How Do Local-Level Legal Institutions Promote Development?, Varun Gauri

Varun Gauri

This paper develops a framework and some hypotheses regarding the impact of local-level, informal legal institutions on three economic outcomes: aggregate growth, inequality, and human capabilities. It presents a set of stylized differences between formal and informal legal justice systems, identifies the pathways through which formal systems promote economic outcomes, reflects on what the stylized differences mean for the potential impact of informal legal institutions on economic outcomes, and looks at extant case studies to examine the plausibility of the arguments presented. The paper concludes that local-level, informal legal institutions can support social substitutes for the enforcement of contracts, though …

Collective Bargaining Agreements In Discrimination Cases: Forum Shopping Their Way Into A New York District Court Near You!, George Klidonas

George Klidonas

There has recently been a divergence of opinion between the state courts and the district courts in New York on the issue of whether a unionized employee must arbitrate discrimination claims in light of a collective bargaining agreement mandating alternative dispute resolution. The problem that New York is faced with is that the New York courts recently failed to properly delineate a standard of what a clear and unmistakable waiver. Furthermore this "split" between the federal and state courts with regards to these arbitration provisions will cause forum shopping by claimants, heavily favoring federal courts. A trilogy of Supreme Court …

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision …

How Do College And University Leaders Organize And Implement Policies Of Risk Management To Prevent Or Mitigate Institutional Liability?, Robert A. Campo

Robert A Campo

The goal of this research is to identify the methods,policies and procedures used by public and private college and university leaders to resolve conflicts, avoid court action, and limit risk factors that lead to institutional liabilty.In-depth, structured interviews of 30 higher educational leaders, including nine college/university presidents,17 vice-presidents,two university foundation presidents, and two in-house counsel were conducted regarding their perceptions of risk,appropriate means for reducing risk,crime prevention techniques,insurance protection including choices of deductibles,views on self insurance, crisis management, views on faculty termination, thoughts on tenure, ways to prevent sexual harassment, ways to maintain student discipline, views on accounting methods including …

Do Partisan Elections Of Judges Produce Unequal Justice? When Courts Review Employment Arbitrations, Michael Leroy

Michael H LeRoy

Partisan election of judges is a growing concern as large contributions pour into judicial elections. State judges raised $157 million for their campaign funds from 1999 to 2006. Caperton v. A.T. Massey Co. Inc., 129 S.Ct. 2252 (2009), ruled that a state supreme court justice who cast the deciding vote for a company whose president contributed $2.3 million to his campaign violated the losing company’s due process rights. I examine whether partisan judicial elections affect court review of arbitrator rulings (called awards) in employment disputes. For this study, I added a new variable— method for selecting judges— to my database …

Os “Quora” Nos Tribunais Superiores E A Legitimidade De Seus Precedentes: A Decisão Sobre O Recurso Prematuro No Superior Tribunal De Justiça., Nelson Rodrigues Netto

Nelson Rodrigues Netto

No abstract provided.

Contract Adjudication In A Collaborative Economy, Matthew C. Jennejohn

Matthew C Jennejohn

In order to explore the debate between contextualist versus formalist contract interpretation, this article examines dispute resolution procedures in a novel class of contracts: agreements governing inter-firm collaboration. Analysis of these contracts reveals two phenomena: first, agreements governing collaboration include arbitration clauses more frequently than other commercial contracts; and second, these agreements routinely situate arbitration at the summit of complex escalation procedures. These observations raise, in turn, the following inter-related questions: first, why do collaborators avoid litigation; and second, what makes escalated and private dispute resolution appropriate?

The article’s central claim is that litigation is shunned because contemporary contextualist contract …

Bad Faith In Cyberspace: Grounding Domain Name Theory In Trademark, Property, And Restitution, Jacqueline Lipton

Jacqueline D Lipton

The year 2009 marks the tenth anniversary of domain name regulation under the Anti-Cybersquatting Consumer Protection Act (ACPA) and the Uniform Domain Name Dispute Resolution Policy (UDRP). Adopted to combat cybersquatting, these rules left a confused picture of domain name theory in their wake. Early cybersquatters registered Internet domain names corresponding with other’s trademarks to sell them for a profit. However, this practice was quickly and easily contained. New practices arose in domain name markets, not initially contemplated by the drafters of the ACPA and the UDRP. One example is clickfarming – using domain names to generate revenues from click-on …

Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., the U.S. Supreme Court vacated a state supreme court decision in which a justice who had received $3 million in campaign support from a company CEO cast the deciding vote to relieve the company of a $50 million liability. The Caperton majority adopted a “probability of bias” standard for constitutional due process review of judicial disqualification decisions that differs from the ordinary “reasonable question as to impartiality” standard for recusal. Four dissenters objected to the majority’s limited supervision of state court disqualification practice, minimized the danger of biased judging presented by the …

The Unpredictability Paradox: Punitive Damages And Interest In International Arbitration, John Gotanda

John Y Gotanda

No abstract provided.

Interest As Damages, John Y. Gotanda, Thierry J. Sénéchal

Working Paper Series

In this article, we posit that when arbitral tribunals decide international disputes, they typically fail to fully compensate claimants for the loss of the use of their money. This failure occurs because they do not acknowledge that businesses typically invest in opportunities that pose a significantly greater risk than the risk reflected in such commonly used standards as U.S. T-bills and LIBOR rates. Claimants also must share the blame when they do not set out a well-constructed claim for interest as damages. However, even when claimants do so, tribunals often award damages at a statutory rate or at rate reflecting …

Investment Agreement Claims Under The 2004 Model Us Bit: A Challenge For State Police Powers?, Laura Henry

Laura Henry

No abstract provided.

Development And Outcomes Of Investment Treaty Arbitration, Susan Franck

Articles in Law Reviews & Other Academic Journals

The legitimacy of investment treaty arbitration is a matter of heated debate. Asserting that arbitration is unfairly tilted toward the developed world, some countries have withdrawn from World Bank dispute resolution bodies or are taking steps to eliminate arbitration. In order to assess whether investment arbitration is the equivalent of tossing a two-headed coin to resolve investment disputes, this article explores the role of development status in arbitration outcome. It first presents descriptive, quantitative research about the developmental background of the presiding arbitrators who exert particular control over the arbitration process. The article then assesses how (1) the development status …

Judicial Review Of Arbitration Awards After Cable Connections: Toward A Due Process Model, Lindsee Blair Gendron, Peter M. Hoffman, Esq.

Lindsee Blair Gendron

No abstract provided.

Dispute Resolution And The Post-Divorce Family: Implications Of A Paradigm Shift, Jana B. Singer

Jana B. Singer

Over the past two decades, there has been a paradigm shift in the way the legal system handles most family disputes – particularly disputes involving children. This paradigm shift has replaced the law-oriented and judge-focused model of adjudication with a more collaborative, interdisciplinary and forward-looking family dispute resolution regime. It has also transformed the practice of family law and fundamentally altered the way in which disputing families interact with the legal system. This essay examines the elements of this paradigm shift in family dispute resolution and explores the opportunities and challenges it offers for families, children and the legal system.

A Fighting Chance: The Proposed Servicemembers Access To Justice Act & Its Potential Effects On Binding Arbitration Agreements, Sean M. Hardy

Sean M Hardy

No abstract provided.

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

richard l barnes

Manipulating Court Doctrine for the Good of the Common Law and Compulsory Arbitration By Richard L. Barnes Abstract: Preston v. Ferrer from the Supreme Court in 2008 shows that the Court is steadfastly committed to fostering arbitration. In the most sweeping terms so far the Court pushed the limits of interstate commerce and reached into the California state court system to override that state’s deference to administrative fact finding. In place of administrative and adjudicatory decision-making the Court again demanded arbitral dispute resolution. This Article covers, in a compact format of approximately 9800 words, the origins of the Federal Arbitration …

Resolving Family Conflicts, Jana B. Singer, Jane Murphy

Jana B. Singer

Over the past two decades, virtually all areas of family law have undergone major doctrinal and theoretical changes - from the definition of marriage, to the financial and parenting consequences of divorce, to the legal construction of parenthood. An equally important set of changes has transformed the resolution of family disputes. This 'paradigm shift' in family conflict resolution has reshaped the practice of family law and has fundamentally altered the way in which disputing families interact with the legal system. Moreover, the changes have important implications for the way that family law is understood and taught. This volume examines the …

Resolving Legal Disputes In The Metaverse: A Meditation On Teaching Mediation Skills And Perspectives In Virtual Worlds, Andrea M. Seielstad

Andrea M. Seielstad

Posted on bepress Legal Repository.

Eliminating Securities Fraud Class Actions Under The Radar, Barbara Black

Barbara Black

At least since Basic, Inc. v. Levinson, the business community and many influential scholars have challenged the existence of the securities fraud class action on a variety of grounds. Recently, two proposals have been advanced to “fix” the problem of “abusive” securities fraud class actions. One proposal requires arbitration of all securities fraud actions; the other eliminates the corporate defendant in most actions. Proponents assert that shareholders should have the right to adopt these proposals through amendment of the company’s certificate of incorporation. Both these proposals have attracted more than academic interest. In reality, adoption of either proposal would substantially …

Investments In Sub Saharan Africa: The Role Of International Arbitration In Dispute Settlement, Oladiran Ajayi

Oladiran Ajayi

Africa has grown significantly in this decade and is attracting investors. Economic growth can however be cyclical. The World is now going through a major economic downturn and Africa is not exempted. In different countries, including African States, parties may find themselves in positions where they cannot meet their contractual requirements and this will lead to a dispute. This paper considers the arbitration mechanisms for resolving such disputes relating to investments in Sub Saharan Africa. It will look at Nigeria and Angola and the avenues for arbitration in diputes relating to them. It wll conclude that structures exist for international …

Settlement : An Empirical Documentation Of Judicial Settlement Conferences Practices And Techniques, Peter R. Robinson

Peter R. Robinson

This article documents the results of a survey of California civil trial judges regarding their practices and techniques in settlement conferences. It provides empirical evidence regarding the extent that settlement judges focus on explaining legal strengths and weaknesses compared to satisfying the underlying needs, goals, fears, or feelings. It also documents the prevalence of directive, as compared to illicitive, techniques in judicial settlement conferences. Scholars and practitioners interested in a judicial view of the settlement conference practices should be interested in this article.

An Opportunity Lost: The Supreme Court’S Failure To Recognize The Implications Of Its Holding In Hall Street Associates, L.L.C. V. Mattel, Inc., Eric S. Chafetz

Eric S. Chafetz

The Supreme Court of the United States, in Hall Street Associates, L.L.C. v. Mattel, Inc., 128 S.Ct. 1396 (2008), finally addressed whether parties can contract to expand the judicial review provisions in sections 10 and 11 of Article 1 of the Federal Arbitration Act (“FAA”), which governs domestic arbitration awards. Although the Supreme Court resolved this specific issue in the negative, its analysis was incomplete, as it did not recognize how the meaning of the language included in section 9 of Article 1 of the FAA was very similar to that in section 207 of Article 2 of the FAA. …

A Comprehensive Blueprint For A Crucial Service: Florida’S New Supervised Visitation Strategy, Nat S. Stern

Nat S Stern

No abstract provided.

Turning Trips On Its Head: An “Ip Cross Retaliation” Model, Shamnad Basheer

Shamnad Basheer Mr

The recent World Trade Organization (WTO) mini ministerial negotiations came a cropper: despite intense negotiations over several weeks, India and the United States could not agree on the extent of tariffs to protect poor farmers against import surges. In the wake of this failure, a number of member states are expected to resort to the WTO dispute settlement mechanism to extract concessions out of scofflaw states. Brazil is one such country that had won a case against the US on illegal cotton subsidies several years ago. However, despite WTO Panel and Appellate Body rulings in Brazil’s favour, the US refused …