Law Commons^™

Disability And Transnational Arbitration: Human Rights Linkages And Reasonable Accommodations, Ilias Bantekas

William & Mary Business Law Review

Disability intersects with arbitration as regards the mental capacity of a party to enter into an arbitration agreement, the appointment of arbitrators with disability and grounds for removal thereof, accommodations during arbitral proceedings for arbitrators and counsel with disabilities, as well as the costs for all appropriate accommodations. This Article demonstrates that the right to a fair trial, which is universally recognized in arbitration, dictates that parties and arbitral institutions be free to select arbitrators of their choice, and no impediments may be imposed against arbitrators with disabilities other than that they are able to fulfill the functions of their …

Humanizing Virtual Dispute Resolution, Elayne E. Greenberg

Faculty Publications

(Excerpt)

How might neutrals and advocates foster interpersonal dynamics when conducting arbitrations and mediations virtually, consistent with the ethical obligations of each profession and the ethical underpinnings of each process?

Virtual dispute resolution for commercial dispute resolution has become the new normal. Yet, the dispute resolution listserves are still peppered with posts from mediators and arbitrators who, although publicly extolling their own commitments to their impartiality and neutrality, are also simultaneously voicing their strong preferences for conducting their dispute resolution processes in person. According to these neutrals, they are unable to attain the same results when the process is conducted …

Structural Barriers To Inclusion In Arbitrator Pools, Nicole G. Iannarone

Washington Law Review

Critics increasingly challenge mandatory arbitration because the pools from which decisionmakers are selected are neither diverse nor inclusive. Evaluating diversity and inclusion in arbitrator pools is difficult due to the black box nature of mandatory arbitration. This Article evaluates inclusion in arbitrator pools through a case study on securities arbitration. The Article relies upon the relatively greater transparency of the Financial Industry Regulatory Authority (FINRA) forum. It begins by describing the unique role that small claims securities arbitration plays in maintaining investor trust and confidence in the securities markets before describing why ensuring that the FINRA arbitrator pool is both …

Law School News: Rwu Law Acquires Top Marine Law Journal 08-19-2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The Power Of Two Words To Split Circuits, Natalie Whitacre

University of Miami Law Review

28 U.S.C. § 1782 authorizes federal judges to grant assistance to a “foreign or international tribunal” for discovery proceedings. The meaning of the term “foreign or international tribunal” has been the subject of much dispute. In 2019 the Sixth Circuit became the first court of appeals to extend the purview of the statute to private commercial arbitration, creating a circuit split. However, the use of 28 U.S.C. § 1782 in arbitral proceedings raises a number of questions about whether U.S. style discovery would impede the efficiency of arbitration and whether the practice could be extended to international tribunals located within …

Remuneration Of The Arbitrators In International Commercial Arbitration: Arbitrators’Authority In Setting Their Fees And The Oversight Role Of The Judiciary, Mosleh Ahmad Tarawneh, Abdullah Aldmour

UAEU Law Journal

This article examines the nature and the enforceability of arbitrators’ authority in setting their fees. It seeks to identify the different methods, factors, determinants of calculating fees, and the guarantees that entitle them to meet these fees. The fundamental question is: Could the arbitrators force the parties to pay their fees by issuing an award against them? The Article will also examine the role of the national courts in setting or controlling the fees of the arbitrators and the advance payment of arbitration costs.

Keywords: International Commercial Arbitration, Arbitrators, Remuneration of the Arbitrators, Cost-control, Advance payment on Cost, Jordanian Arbitration …

Primer: International Investment Treaties And Investor-State Dispute Settlement, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

What Are International Investment Agreements (IIAs)?
IIAs are bilateral or multilateral treaties that commit state-parties to afford specific standards of conduct to foreign investors from the other state-parties. These treaties grant foreign investors certain benefits, including recourse to Investor-State Dispute Settlement (ISDS) to resolve disputes with host states. Over 3,300 agreements have been concluded worldwide, including NAFTA and the Comprehensive and Progressive TransPacific Partnership.

What is Investor-State Dispute Settlement (ISDS)?
IIAs allow foreign investors (individuals and companies) to allege treaty violations by suing states through ad hoc arbitration. Arbitration tribunals are composed of party-appointed (and party-paid) private lawyers. Tribunals …

Sifting Through The Arbitrators For The Woman, The Minority, The Newcomer, Douglas Pilawa

Case Western Reserve Journal of International Law

This Note examines the process of choosing an arbitrator in international arbitration. Much of the debate and criticism of this process addresses the lack of diversity in arbitral tribunals around the world. Diversity in this context means not only traditional diversity (i.e. gender, race, ethnicity), but also the basic idea of adding "fresh faces " to arbitral tribunals. Yet the ethical obligation to provide a client with the best chance to prevail encourages counsel to choose a familiar, wellknown name with an established "track record" over a littleknown "dark horse. " This tension illustrates a fundamental point of friction in …

International Arbitration - Between Myth And Reality: The 9th John E.C. Brierly Memorial Lecture, Susan Franck

Articles in Law Reviews & Other Academic Journals

The first woman to deliver the John E.C. Brierly Memorial Lecture in November 2016, Susan Franck explores common but flawed accounts of international arbitration based on anecdotes and myths while encouraging the audience to pay more attention to scientific facts. While acknowledging the challenges of living in a “post-factual” society, she argues that international arbitration, whether commercial or investment-based, is caught within a larger geo-political maelstrom which includes a backlash against globalization, the popularization of populism, and a turn toward nationalism. Rather than permitting decisions to be affected by an emotive torrent of intuitive forces that facilitate decisions based upon …

Revisiting The “Content-Of-Laws” Enquiry In International Arbitration, Soterios Loizou

Louisiana Law Review

No abstract provided.

Inside The Arbitrator's Mind, Susan Franck

Articles in Law Reviews & Other Academic Journals

Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …

Comparing The Effects Of Judges' Gender And Arbitrators' Gender In Sex Discrimination Cases And Why It Matters, Pat K. Chew

Articles

Empirical research substantiates that the judges’ gender makes a difference in sex discrimination and sexual harassment court cases. The author’s study of arbitration of sex discrimination cases administered by the American Arbitration Association between 2010 and 2014, however, finds that this judges’ “gender effect” does not occur. Namely, there is no significant difference in the decision-making patterns of female and male arbitrators as indicated by case outcomes.

The author proposes that characteristics of arbitrators, the arbitration process, and arbitration cases all combine to help explain the gender effect differences. Further, she suggests that this analysis reveals concerns about the arbitration …

Application Of Law By The Maritime Arbitration Commission In Settling Disputes, Sergei N. Lebedev

Georgia Journal of International & Comparative Law

No abstract provided.

Arbitration Law In Tension After Hall Street: Accuracy Of Finality?, Stanley A. Leasure

University of Arkansas at Little Rock Law Review

No abstract provided.

Book Review: Challenges And Recusals Of Judges And Arbitrators In International Courts And Tribunals, S. I. Strong

Faculty Publications

The proliferation of international courts and tribunals over the last few decades has made it increasingly important to ensure that such proceedings are entirely above reproach. In particular, questions have arisen about what should be done in cases where a judge’s or arbitrator’s continued presence threatens the legitimacy of the proceedings. As fundamental as this question is, very little has been written about the standards for challenge and removal of such officials. Fortunately, Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals, a new collection of essays edited by Chiara Giorgetti, Associate Professor of Law at the …

The Vocation Of International Arbitrators, Catherine A. Rogers

Catherine Rogers

This Essay examines the vocation of the international arbitrator. I begin by evaluating, under sociological frameworks developed in literature on Weberian theories of the professions, how the arbitration community is organized and regulated. Arbitrators operate in a largely private and unregulated market for services, access to which is essentially controlled by what might be considered a governing cartel of the most elite arbitrators. I conclude my description with an account of how recently international arbitrators have begun to display a professional impulse, meaning efforts to present themselves as a profession to obtain the benefits of professionalization. Professional status is often …

Fit And Function In Legal Ethics: Developing A Code Of Conduct For International Arbitration, Catherine A. Rogers

Catherine Rogers

In this Article, I develop a methodology for prescribing the normative content of a code of ethics for international arbitration, and in a forthcoming companion article, I propose integrated mechanisms for making those norms both binding and enforceable. In making these proposals, I reject the classical conception of legal ethics as a purely deontological product derived from first principles. I argue, instead, that ethics derive from the interrelational functional role of advocates in an adjudicatory system, and that ethical regulation must correlate with the structural operations of the system. The fit between ethics and function, I will demonstrate, not only …

Context And Institutional Structure In Attorney Regulation: Constructing An Enforcement Regime For International Arbitration, Catherine A. Rogers

Catherine Rogers

The question that looms large over the future of international arbitration is: How much should states yield to the international arbitration system? This Article attempts to answer the question as it applies to the specific context of regulating attorney conduct.

Arbitrator Behaviour In Asymmetrical Adjudication: An Empirical Study Of Investment Treaty Arbitration, Gus Van Harten

Gus Van Harten

The study examines arbitrator behaviour in the unique context of investment treaty arbitration. It employs the method of content analysis to test hypotheses of systemic bias in the resolution of jurisdictional issues in investment treaty law. Unlike earlier studies, the study examines trends in legal interpretation instead of case outcomes and finds statistically significant evidence that arbitrators favour: (1) the position of claimants over respondent states and (2) the position of claimants from major Western capital-exporting states over claimants from other states. There is a range of possible explanations for the results and further inferences are required to connect the …

The Diversity Challenge: Exploring The "Invisible College" Of International Arbitration, Susan Franck

Susan D. Franck

As diversity can affect the perceived legitimacy of a state’s dispute resolution system and the quality of judicial decisions, diversity levels in the national bench and bar have been an area of transnational concern. By contrast, little is known about diversity of adjudicators and counsel in international arbitration. With a lack of accurate, complete, and publicly available data about international arbitrators and practitioners, speculation about membership in the “invisible college” of international arbitration abounds. Using data from a survey of attendees at the prestigious and elite biennial Congress of the International Council for Commercial Arbitration permitted one glimpse into the …

Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong

Michigan Journal of International Law

Unlike many types of domestic arbitration where unreasoned awards (often called “standard awards”) are the norm, international commercial arbitration routinely requires arbitrators to produce fully reasoned awards. However, very little information exists as to what constitutes a reasoned award in the international commercial context or how to write such an award. This lacuna is extremely problematic given the ever-increasing number of international commercial arbitrations that arise every year and the significant individual and societal costs that can result from a badly written award. Although this Article is aimed primarily at specialists in international commercial arbitration, the material is also useful …

International Arbitration: Demographics, Precision And Justice, Susan Franck, James Freda, Kellen Lavin, Tobias A. Lehmann, Anne Van Aaken

Contributions to Books

ICCA Congress Series No. 18 comprises the proceedings of the twenty-second Congress of the International Council for Commercial Arbitration (ICCA), held in Miami in 2014. The articles by leading arbitration practitioners and scholars from around the world address the challenges, both perceived and real, to the legitimacy of international arbitration.

The volume focusses on the twin pillars of legitimacy: justice, in procedure and outcome, and precision at every phase of the proceedings. Contributions on justice explore issues related to diversity, fairness and whether arbitral institutions can do more to foster legitimacy – based on the responses of nine international arbitral …

The Diversity Challenge: Exploring The "Invisible College" Of International Arbitration, Susan D. Franck

Scholarly Articles

As diversity can affect the perceived legitimacy of a state’s dispute resolution system and the quality of judicial decisions, diversity levels in the national bench and bar have been an area of transnational concern. By contrast, little is known about diversity of adjudicators and counsel in international arbitration. With a lack of accurate, complete, and publicly available data about international arbitrators and practitioners, speculation about membership in the “invisible college” of international arbitration abounds. Using data from a survey of attendees at the prestigious and elite biennial Congress of the International Council for Commercial Arbitration permitted one glimpse into the …

The Diversity Challenge: Exploring The 'Invisible College' Of International Arbitration, Susan Franck

Articles in Law Reviews & Other Academic Journals

As diversity can affect the perceived legitimacy of a state’s dispute resolution system and the quality of judicial decisions, diversity levels in the national bench and bar have been an area of transnational concern. By contrast, little is known about diversity of adjudicators and counsel in international arbitration. With a lack of accurate, complete, and publicly available data about international arbitrators and practitioners, speculation about membership in the “invisible college” of international arbitration abounds. Using data from a survey of attendees at the prestigious and elite biennial Congress of the International Council for Commercial Arbitration permitted one glimpse into the …

The Influence Of Arbitrator Background And Representation On Arbitration Outcomes, Adam C. Pritchard, Stephen J. Choi, Jill E. Fisch

Articles

We study the role of arbitrator background in securities arbitration. We find that several aspects of arbitrator background are correlated with arbitration outcomes. Specifically, industry experience, prior experience as a regulator, and status as a professional or retired arbitrator are correlated with statistically significant differences in arbitration awards. The impact of these characteristics is affected by whether the arbitrator in question serves as the panel chair and by whether the parties to the arbitration are represented by counsel. Our findings offer some preliminary insights into the debate over possible arbitrator bias. On the one hand, they suggest that the party …

Protocols For International Arbitrators Who Dare To Settle Cases, Harold Abramson

Harold I. Abramson

The best time to settle an international business dispute can be after the international arbitration proceeding has been commenced. Just like in court litigation, parties may be ready to settle only after the adjudicatory process has begun and even has progressed. In court, judges commonly open the door to settlement; they hold settlement conferences and even actively participate in settlement negotiations. But arbitrators rarely open the door to settlement; when they do, they risk losing their jobs. So, what can international arbitrators safely do? What dare they do? In this article, the author explores the dilemma presented when one neutral …

Is The Truth In The Eyes Of The Beholder? The Perils And Benefits Of Empirical Research In International Investment, Chiara Giorgetti

Law Faculty Publications

Empirical research is the new hot trend in international law. An increasing number of publications include empirical data that aim at strengthening their author's argument. Indeed, empirical data are used to make an argument less fallible, as the author's conclusions are transformed from subjective to objectively proven by the empirical wrap. Professor Catherine Rogers' novel article, The Politics and Empirics of International Investment Arbitrators, highlights important limitations that empirical data may produce in international investment law research.a As such, it is a needed and important contribution to the understanding and development of this type of scholarship, and generally to the …

Resolving Workplace Disputes In The United States: The Growth Of Alternative Dispute Resolution In Employment Relations, David B. Lipsky, Ronald L. Seeber

David B Lipsky

[Excerpt] For more than a decade a "quiet revolution" has been occurring m the American system of justice. There has been a dramatic growth in the use of alternative dispute resolution (ADR) to resolve disputes that might otherwise be handled through litigation. We define ADR as the use of any form of mediation or arbitration as a substitute for the public judicial or administrative process available to resolve a dispute (Lipsky and Seeber, 1998A}. In the United States mediation, arbitration, and their variants ordinarily are private processes in which the disputants themselves select, hire, and pay the third-party neutral who …

Negotiating Better Superfund Settlements: Prospects And Protocols, Scott A. Cassel

Pepperdine Law Review

No abstract provided.

Arbitrator Behaviour In Asymmetrical Adjudication: An Empirical Study Of Investment Treaty Arbitration, Gus Van Harten

Osgoode Hall Law Journal

The study examines arbitrator behaviour in the unique context of investment treaty arbitration. It employs the method of content analysis to test hypotheses of systemic bias in the resolution of jurisdictional issues in investment treaty law. Unlike earlier studies, the study examines trends in legal interpretation instead of case outcomes and finds statistically significant evidence that arbitrators favour: (1) the position of claimants over respondent states and (2) the position of claimants from major Western capital-exporting states over claimants from other states. There is a range of possible explanations for the results and further inferences are required to connect the …