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Full-Text Articles in Law

M/S Bremen V Zapata Off -Shore Company: Us Common Law Affirmation Of Party Autonomy, Ronald A. Brand Jan 2023

M/S Bremen V Zapata Off -Shore Company: Us Common Law Affirmation Of Party Autonomy, Ronald A. Brand

Book Chapters

In the 1972 decision in M/S Bremen v Zapata Off -Shore Company, the U.S. Supreme Court brought together the development of doctrines dealing with party autonomy in choice of court and forum non conveniens. Especially when considered alongside developments favoring arbitration clauses in U.S. courts, the case provides a rich study of conflicts of laws jurisprudence in the twentieth century. This chapter begins with a discussion of fundamental elements of the development of party autonomy in U.S. law and the historical context of the law prior to The Bremen. A brief mention of how one prominent political family …


The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand Jan 2021

The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand

Articles

The Hague Judgments Convention, completed on July 2, 2019, is built on a list of “jurisdictional filters” in Article 5(1), and grounds for non-recognition in Article 7. If one of the thirteen jurisdictional tests in Article 5(1) is satisfied, the judgment may circulate under the Convention, subject to the grounds for non-recognition found in Article 7. This approach to Convention structure is especially significant for countries considering ratification and implementation. A different structure was suggested in the initial Working Group stage of the Convention’s preparation which would have avoided the complexity of multiple rules of indirect jurisdiction, each of which …


The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas Dec 2020

The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas

Pace International Law Review

The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while …


Law And Covid-19, Aurelio Gurrea-Martinez, Yihan Goh, Mark Findlay Oct 2020

Law And Covid-19, Aurelio Gurrea-Martinez, Yihan Goh, Mark Findlay

Research Collection Yong Pung How School Of Law

This book is a collection of essays from scholars at Singapore Management University School of Law analysing the challenges and implications of COVID-19 from the perspective of different areas of law, including private law, corporate law, insolvency law, data protection, financial laws, public law, privacy law, commercial law, constitutional law, law and technology, and dispute resolution. It also analyses how the COVID-19 pandemic will affect the judicial system, the study of law, and the future of the legal profession. Beyond considerations of the pandemic’s influence on law and legal service delivery the authors consider how law can help facilitate the …


Sidra International Dispute Resolution Survey: 2020 Final Report, Nadja Alexander, Vakhtangi Giorgadze, Allison Goh Jul 2020

Sidra International Dispute Resolution Survey: 2020 Final Report, Nadja Alexander, Vakhtangi Giorgadze, Allison Goh

Research Collection Yong Pung How School Of Law

The International Dispute Resolution Survey: 2020 Final Report presents the findings of the Singapore International Dispute Resolution Academy’s inaugural examination into the preferences, experiences, practices and perspectives of international dispute resolution users around the globe. The survey examined three major international dispute resolution mechanisms: international commercial arbitration, international commercial mediation, international commercial litigation, as well as hybrid dispute resolution mechanisms such as mediation-arbitration and arbitration-mediation. The survey also inquired into the use of technology in international dispute resolution, such as predictive analytical tools and negotiation support systems, and asked the users to express whether they were satisfied with the use …


Authorization Of Discovery In International Commercial Arbitration: Demystifying The Sixth Circuit’S Statutory Construction Of 28 U.S.C. § 1782(A), Jason Arendt Jan 2020

Authorization Of Discovery In International Commercial Arbitration: Demystifying The Sixth Circuit’S Statutory Construction Of 28 U.S.C. § 1782(A), Jason Arendt

American University Business Law Review

No abstract provided.


Comparing The International Commercial Courts Of China With The Singapore International Commercial Court, Zhengxin Huo, Yip Man Oct 2019

Comparing The International Commercial Courts Of China With The Singapore International Commercial Court, Zhengxin Huo, Yip Man

Research Collection Yong Pung How School Of Law

The article critically reviews the litigation framework of the Chinese International Commercial Court("CICC') using a comparative approach, taking as a benchmark the Singapore International Commercial Court ("SICC')--another Asian international commercial court situated within the Belt and Road Initiative ("BRI') geography. It argues that the CICC, despite being lauded as a visionary step toward an innovative, efficient and trustworthy dispute resolution system, does not live up to those grand claims on closer scrutiny. The discussion shows that the CICC is in many respects insular and conservative when compared with the SICC. The distinctions between the two litigation frameworks may be explained …


The Singapore International Commercial Court: The Future Of Litigation?, Man Yip Jul 2019

The Singapore International Commercial Court: The Future Of Litigation?, Man Yip

Research Collection Yong Pung How School Of Law

The Singapore International Commercial Court (‘SICC’) was launched on 5 January 2015, at the Opening of Legal Year held at the Singapore Supreme Court. What prompted the creation of SICC? How is the SICC model of litigation different from litigation in the Singapore High Court? What is the SICC’s track record and what does it tell us about its future? This article seeks to answer these questions at greater depth than existing literature. Importantly, it examines these questions from the angle of reimagining access of justice for litigants embroiled in international commercial disputes. It argues that the SICC’s enduring contribution …


Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly Mar 2018

Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly

Peter R. Reilly

According to the U.S. Department of Justice (“DOJ”), deferred prosecution agreements are said to occupy an “important middle ground” between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that, over the last decade, the agreements have become a “mainstay” of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the “biggest change in corporate law enforcement policy in the last ten years.”

However, despite deferred prosecution’s apparent rise in popularity among law enforcement officials, the article sets forth the argument …


Contracts - Jurisdiction - Absent A Strong Showing Of Unreasonableness Or Undue Influence, Parties’ Contractual Selection Of Forum In International Transactions Will Be Valid And Enforceable, Shelley Himel May 2016

Contracts - Jurisdiction - Absent A Strong Showing Of Unreasonableness Or Undue Influence, Parties’ Contractual Selection Of Forum In International Transactions Will Be Valid And Enforceable, Shelley Himel

Georgia Journal of International & Comparative Law

No abstract provided.


The Intersection Between Legal Risk Management And Dispute Resolution In The Commercial Context, Garrick Apollon Feb 2016

The Intersection Between Legal Risk Management And Dispute Resolution In The Commercial Context, Garrick Apollon

Pepperdine Dispute Resolution Law Journal

This article explains the key advantages and challenges of using LRM to help lawyers managing substantive matters related to the commercial negotiations and disputes, and the key advantage of using ADR techniques for the management of nonsubstantive matters related to commercial negotiations and disputes. This article overall demonstrates that LRM can complement dispute resolution and vice versa. This article also demonstrates how LRM can be utilized in commercial negotiations and mediations.


The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross Jan 2016

The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross

Brooklyn Journal of Corporate, Financial & Commercial Law

Arbitration has been the predominant form of dispute resolution in the securities industry since the 1980s. Virtually all brokerage firms include predispute arbitration agreements (PDAAs) in their retail customer contracts, and have successfully fought off challenges to their validity. Additionally, the industry has long mandated that firms submit to arbitration at the demand of a customer, even in the absence of a PDAA.

More recently, however, brokerage firms have been arguing that forum selection clauses in their agreements with sophisticated customers (such as institutional investors and issuers) supersede firms’ duty to arbitrate under FINRA Rule 12200. Circuit courts currently are …


Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty Dec 2015

Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty

Benjamin C McCarty

The drafters of the 1958 New York Convention intended Article V(2)(b) to be interpreted narrowly, and while most pro-arbitration national courts do maintain narrowly defined areas of public policy that are sufficient for refusal of the recognition and enforcement of a foreign arbitral award, this is not always the case. Developing states and jurisdictions that maintain corrupt or inefficient judicial systems have shown a greater willingness to invoke the public policy exception for a broader, amorphous variety of reasons. This phenomenon has created a sense of unpredictability among international investors, arbitrators, and business executives as to the amount of deference …


Mediation Representation: Representing Clients Anywhere, Harold Abramson Mar 2014

Mediation Representation: Representing Clients Anywhere, Harold Abramson

Harold I. Abramson

No abstract provided.


Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly Mar 2014

Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly

Faculty Scholarship

According to the U.S. Department of Justice (“DOJ”), deferred prosecution agreements are said to occupy an “important middle ground” between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that, over the last decade, the agreements have become a “mainstay” of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the “biggest change in corporate law enforcement policy in the last ten years.”

However, despite deferred prosecution’s apparent rise in popularity among law enforcement officials, the article sets forth the argument …


The Arbitration Clause As Super Contract, Richard Frankel Feb 2013

The Arbitration Clause As Super Contract, Richard Frankel

Richard Frankel

It is widely acknowledged that the purpose of the Federal Arbitration Act was to place arbitration clauses on equal footing with other contracts. Nonetheless, federal and state courts have turned arbitration clauses into “super contracts” by creating special interpretive rules for arbitration clauses that do not apply to other contracts. In doing so, they have relied extensively, and incorrectly, on the Supreme Court’s determination that the FAA embodies a federal policy favoring arbitration.

While many scholars have focused attention on the public policy rationales for and against arbitration, few have explored how arbitration clauses should be interpreted. This article fills …


Arbitral Autonomy, Liaquat Ali Khan Jan 2013

Arbitral Autonomy, Liaquat Ali Khan

Ali Khan

This Article presents concrete proposals to amend the current arbitration law for minimizing court intervention into arbitration proceedings and enforcement of arbitral awards. As a method of dispute resolution, arbitration offers an alternative to litigation. Yet arbitration is frequently interspersed with litigation. As a true alternative, arbitration should be, and can be, autonomous, that is, litigation-free. Arbitral autonomy fails when parties go to court to challenge validity of the arbitration agreement, to obtain emergency relief, or to contest enforceability of the award, among other reasons. To accomplish litigation-free arbitration, first, the need to go to court must be minimized; second, …


Structured Notes Fiasco In The Courts: A Study Of Relevant Judgments In Taiwan Between 2009 And 2010, Christopher Chao-Hung Chen May 2012

Structured Notes Fiasco In The Courts: A Study Of Relevant Judgments In Taiwan Between 2009 And 2010, Christopher Chao-Hung Chen

Christopher Chao-hung CHEN

The purpose of this article is to analyse relevant judicial decisions in Taiwan regarding structured notes sold to retail investors. Regarding pre-sale disputes, one issue was that investors failed to read contractual documents properly before signing contracts, so there was a question whether they could later claim a bank’s violation of its duty to explain. This article favours the view that an investor’s signature may exempt a bank’s duty, provided that investors are made aware of relevant warnings. In addition, for suitability assessment, relevant judgments show that customers were too easily classified as active investors based on a simple questionnaire. …


The Dispute Settlement Understanding Of The Wto Agreement: An Inadequate Mechanism For The Resolution Of International Trade Disputes, Sean P. Feeney Apr 2012

The Dispute Settlement Understanding Of The Wto Agreement: An Inadequate Mechanism For The Resolution Of International Trade Disputes, Sean P. Feeney

Pepperdine Dispute Resolution Law Journal

The 1994 signing of the World Trade Organization (WTO) Agreement marked the initiation of the most far-reaching and comprehensive international agreement on trade in the history of the modern world. The creation of an actual trade organization was a marked improvement over the WTO's predecessor, the 1944 GATT, which never formed an organization per se. Among the many improvements to the GATT, the WTO Agreement substantially changed the mechanism for dispute settlement whenever conflict arose between member states. This change, codified as the Dispute Settlement Understanding ("DSU"), was initially hailed as a great improvement over the GATT dispute settlement provisions. …


Uncitral Model Law On International Commercial Conciliation: From A Topic Of Possible Discussion To Approval By The General Assembly , Robert N. Dobbins Apr 2012

Uncitral Model Law On International Commercial Conciliation: From A Topic Of Possible Discussion To Approval By The General Assembly , Robert N. Dobbins

Pepperdine Dispute Resolution Law Journal

By no means a Pulitzer Prize winner, for those interested enough to inquire, the story of the creation of the Model Law is remarkable. The purpose of this Note is to give a snapshot of how, what began in the shadow of Arbitration as a "possible work topic considered by the Commission . . . Conciliation," in the space of two and one-half years became the Model Law. As a secondary and intentional focus of this note, this author (conceding his own bias) hopes to allow the Secretariat of UNCITRAL to enjoy its well-deserved moment in the spotlight for its …


International Arbitral Appeals: What Are We So Afraid Of? , Erin E. Gleason Mar 2012

International Arbitral Appeals: What Are We So Afraid Of? , Erin E. Gleason

Pepperdine Dispute Resolution Law Journal

This article will explore the advantages of instituting appellate mechanisms in investor-state disputes and international commercial arbitration. Part II begins with a review of the WTO Appellate Body's development and workings, followed by an analysis of other appellate procedures for international trade law arbitration, including the MERCOSUR system's Permanent Court and the Grain and Feed Trade Association's appeals process. Part III examines the current methods for reviewing investor-state arbitration awards under ICSID and NAFTA. Part III goes on to advocate for the creation of an Appeals Facility, separate from current arbitral institutions, which would be empowered to hear appeals in …


Honolulu: Geneva Of The Pacific?, Robert K. Wrede Mar 2012

Honolulu: Geneva Of The Pacific?, Robert K. Wrede

Pepperdine Dispute Resolution Law Journal

Simply stated, this paper proposes revitalization of a long dormant Hawaiian legislative plan to create a state-of-the-art facility in the Aloha State specializing in avoiding, managing and resolving international commercial conflicts using methods other than traditional litigation. The paper's premise is that a mid-Pacific facility specializing in the use of non-litigation methods for dealing with Pacific Rim transnational commercial disputes would both enhance Pacific Rim commerce, in general, and posture Hawaii as a major player in that valuable and rapidly growing sector of global affairs.


Structured Notes Fiasco In The Courts: A Study Of Relevant Judgments In Taiwan Between 2009 And 2010, Christopher Chao-Hung Chen Mar 2012

Structured Notes Fiasco In The Courts: A Study Of Relevant Judgments In Taiwan Between 2009 And 2010, Christopher Chao-Hung Chen

Research Collection Yong Pung How School Of Law

The purpose of this article is to analyse relevant judicial decisions in Taiwan regarding structured notes sold to retail investors. Regarding pre-sale disputes, one issue was that investors failed to read contractual documents properly before signing contracts, so there was a question whether they could later claim a bank’s violation of its duty to explain. This article favours the view that an investor’s signature may exempt a bank’s duty, provided that investors are made aware of relevant warnings. In addition, for suitability assessment, relevant judgments show that customers were too easily classified as active investors based on a simple questionnaire. …


Law – Made In Germany: Global Standort Or Global Standard?, James Maxeiner Jan 2012

Law – Made In Germany: Global Standort Or Global Standard?, James Maxeiner

All Faculty Scholarship

Earlier this year the Federal Ministry of Justice released the second edition of the brochure, Law - Made in Germany. For those readers who do not know the brochure, it is the product of an umbrella group of German professional organizations known as the Bündnis für das deutsche Recht. A purpose of the Bündnis, as stated at its founding in 2008, and of the brochure, is to improve the position of German law in the ― "international competition of legal systems" (internationalen Wettbewerb der Rechtsordnungen). Catalyst for founding of the Bündnis and for publication of Law - Made in Germany …


Drept Privat Într-O Societate Post-Naţională: De La Reglementarea Ex Post La Reglementarea Ex Ante, Jan M. Smits Jan 2012

Drept Privat Într-O Societate Post-Naţională: De La Reglementarea Ex Post La Reglementarea Ex Ante, Jan M. Smits

Jan M Smits

This contribution (in Romanian) shows how the role of law is changing as a result of globalisation and technological progress. It demonstrates how the traditional view of law as being produced by different nation-state legal orders, each claiming exclusive jurisdiction for a limited territory, is gradually making place for alternative types of ordering. The ex post reliance on the law to provide appropriate rules, enforcement and dispute resolution is replaced by a situation in which actors proactively avoid as much as possible the applicability of laws. This development towards delivering ‘legality’ without law is much more important in understanding the …


Predisposed With Integrity: The Elusive Quest For Justice In Tripartite Arbitrations, Deseriee A. Kennedy Apr 2011

Predisposed With Integrity: The Elusive Quest For Justice In Tripartite Arbitrations, Deseriee A. Kennedy

Deseriee A. Kennedy

No abstract provided.


Mediation Representation: Representing Clients Anywhere, Harold Abramson Jan 2011

Mediation Representation: Representing Clients Anywhere, Harold Abramson

Scholarly Works

No abstract provided.


The Rome I Regulation Rules On Party Autonomy For Choice Of Law: A U.S. Perspective, Ronald A. Brand Jan 2011

The Rome I Regulation Rules On Party Autonomy For Choice Of Law: A U.S. Perspective, Ronald A. Brand

Articles

This chapter was presented at a conference in Dublin on the (then) new Rome I Regulation of the European Union in the fall of 2009. It contrasts the Rome I rules on party autonomy with those in the United States. In particular, it considers the rules in the Rome I Regulation that ostensibly protect consumers by discouraging party agreement on a pre-dispute basis to the law governing a consumer contract. These rules are compared with the absence of private international law restrictions on choice of forum and choice of law in the United States, even in consumer contracts. The result …


The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In Publicly-Held Companies’ Contracts, Theodore Eisenberg, Geoffrey Miller Oct 2006

The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In Publicly-Held Companies’ Contracts, Theodore Eisenberg, Geoffrey Miller

ExpressO

We study a data set of 2,858 contracts contained as exhibits in Form 8-K filings by reporting corporations over a six month period in 2002 for twelve types of contracts and a seven month period in 2002 for merger contracts. Because 8-K filings are required only for material events, these contracts likely are carefully negotiated by sophisticated parties who are well-informed about the contract terms. These contracts, therefore, provide evidence of efficient ex ante solutions to contracting problems. The vast majority of contracts did not require arbitration. Only about 11 percent of the contracts included binding arbitration clauses. The rate …


Can New York's New Commercial Division Resolve Business Disputes As Well As Anyone?, Robert L. Haig Jan 1996

Can New York's New Commercial Division Resolve Business Disputes As Well As Anyone?, Robert L. Haig

Touro Law Review

No abstract provided.