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Provisional Measures In Aid Of Arbitration, Ronald A. Brand

Articles

The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may secure assets, evidence, or the status quo between parties prior to the completion of the arbitration process. This makes the availability of provisional measures granted by either arbitral tribunals or by courts fundamental to the arbitration. In this Article, I consider the existing legal framework for provisional measures in aid of arbitration, with particular attention to the sources of the rules providing for such measures. Those sources …

Arbitration (Tahkim) And Reconciliation (Sulh) In Islam As Alternative Dispute Resolution Mechanisms, Saidilyos Khakimov

The Light of Islam

The main reason behind this work is to illustrate the current need for Islamic alternative dispute resolution methods and offer analysis to show the benefts of their applications. There has been a vivid rise in ADRs’ recognition globally as a substitute for litigation and related issues that would be better if addressed with an Islamic perspective. The wide usage of the term has been intensifed uninterruptedly after the second half of the 20th century. This paper intends to introduce a 1,5-centuryyear-old background of legally institutionalized arbitration
(Tahkim) and reconciliation (Sulh), Islamic means or ways of alternative dispute resolution. I will …

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 …

Venezuela Undermines Gold Miner Crystallex's Attempts To Recover On Its Icsid Award, Sam Wesson

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Online Dispute Resolution, Ronald A. Brand

Articles

This chapter was prepared from a presentation given by the author at the 2019 Summer School in Transnational Commercial Law & Technology, jointly sponsored by the University of Verona School of Law and the Center for International Legal Education (CILE) of the University of Pittsburgh School of Law. In the paper, I review online dispute resolution (ODR) by considering the following five questions, which I believe help to develop a better understanding of both the concept and the legal framework surrounding it:

A. What is ODR?

B. Who does ODR?

C. What is the legal framework for ODR?

D. What …

The Case For American Muslim Arbitration, Rabea Benhalim

Publications

This Article advocates for the creation of Muslim arbitral tribunals in the United States. These tribunals would better meet the needs of American Muslims, who currently bring their religious disputes to informal forums that lack transparency. Particularly problematic, these existing forums often apply legal precedent developed in majority-Muslim nations, without taking into consideration the changed circumstances of Muslim living as minorities in the United States. These interpretations of Islamic law can have especially negative impacts on women. American Muslim arbitration tribunals offer the potential to correct these inadequacies. Furthermore, a new arbitral system could better meet the needs of sophisticated …

Manifest Disregard In International Commercial Arbitration: Whether Manifest Disregard Holds, However Good, Bad, Or Ugly, Chad R. Yates

University of Massachusetts Law Review

Manifest disregard is a common law reason for not enforcing an arbitration award. This principle applies when the arbitrator knew and understood the law, but the arbitrator disregarded the applicable law. Presently, the United States Supreme Court has not made a definite decision on whether manifest disregard is still a valid reason for vacating the award (known as “vacatur”), and the Court is highly deferential to arbitrator decisions. Consequently, the lower courts are split on the issue. For international commercial arbitration awards, manifest disregard can only apply to a foreign award that is decided under United States law or in …

Boilerplate’S False Dichotomy, James Gibson

Law Faculty Publications

The argument against enforcing boilerplate contracts (contracts that no one reads) seems clear. Indeed, if this were a court case we would say that the jury is in; the evidence against boilerplate is overwhelming. Yet the judge has yet to render judgment. Courts continue to enforce boilerplate terms, and even those scholars who have exposed boilerplate as an emperor with no clothes are reluctant to gaze upon its nakedness and condemn its use.

This reluctance originates in an assumption that pervades the boilerplate debate—namely, that courts and commentators alike view boilerplate as necessary to the modern transaction. When asked to …

English Justice For An American Company?, Christopher French

Christopher C. French

Dismantling Democracy: Common Sense And The Contract Jurisprudence Of Frank Easterbrook, Deborah Post

Touro Law Review

No abstract provided.

Preface To The Gateway Thread, Deborah Post

Touro Law Review

No abstract provided.

Where's The Sense In Hill V. Gateway 2000?: Reflections On The Visible Hand Of Norm Creation, Shubha Ghosh

Touro Law Review

No abstract provided.

Cognition And Common Sense In Contract Law, Beverly Horsburgh, Andrew Cappel

Touro Law Review

No abstract provided.

Common Sense, Contracts, And Law And Literature: Why Lawyers Should Read Henry James, Lenora Ledwon

Touro Law Review

No abstract provided.

Common Sense And Contract Law: Fear Of A Normative Planet?, Thomas Joo

Touro Law Review

No abstract provided.

Vacatur Of Awards Under The Tennessee Uniform Arbitration Act: Substance, Procedure, And Strategies For Practitioners, Steven Feldman

Steven Feldman

Currently, a lively debate exists in the academic community about the fairness of contractual arbitration clauses. The commentators, however, rarely explore the doctrinal aspects of arbitration as found in the Uniform Arbitration Act, the Revised Uniform Arbitration Act, and the Federal Arbitration Act.

This oversight is regrettable because standard form arbitration clauses are a fixture on the current legal landscape and the odds are high that arbitration in its current form will continue for many years to come.

This article analyzes the Tennessee Uniform Arbitration Act (TUAA). One of the most challenging TUAA topics is the action for vacatur (annulment) …

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 …

Foreign Investment In The People's Republic Of China: Compensation Trade, Joint Ventures, Industrial Property Protection And Dispute Settlement, Kevin K. Maher

Georgia Journal of International & Comparative Law

No abstract provided.

Is The Albert H Kritzer Database Telling Us More Than We Know?, Thomas Neumann

Pace International Law Review

This article is the first in a series of articles attempting to provide a geographical and temporal overview of the application practice of the United Nations Convention on Contracts for the International Sale of Goods (CISG). In this first article, the success of CISG is explored. The article develops the idea of using the Albert H. Kritzer Database to achieve an overview of the success of the Convention in practice. It is argued that the success of the Convention is useful to measure by its uniformity in practice, and therefore a set of criteria relating to the Convention’s application by …

Consumer Protection, Hijacking And The Concepcion Cases, Brandy G. Robinson

Brandy G Robinson

Since its ruling, AT&T Mobility v. Concepcion has been the subject of scrutiny among many people in both the business and legal industries. The ruling’s significance denotes class arbitration is no longer a viable option in certain types of litigation matters. Yet, courts continue to defy this ruling. Post-Concepcion cases help in exploring why there is such a discord and confusion on whether class arbitration or any class alternative dispute resolution method are allowable.This article briefly examines AT&T Mobility LLC v. Concepcion and post-Concepcion cases and what remains for consumers and consumer law attorneys after Concepcion. The article also provides …

The Problem With Frand: How The Licensing Commitments Of Standard-Setting Organizations Result In The Misvaluing Of Patents, David Arsego

Brooklyn Journal of International Law

Standard-setting organizations (SSOs) are bodies that oversee the development of technical standards. Technical standards are common technological designs that are used across a variety of platforms, for instance LTE, which is utilized throughout the mobile phone industry. Members of SSOs contribute different pieces of technology to an ultimate design, and if a patent covers the technology, it is called a standard-essential patent (SEP). SSOs require their members to license these patents to each other on fair, reasonable, and nondiscriminatory (FRAND) terms. This Note analyzes the FRAND requirement and the different ways that courts and private parties interpret it. The ambiguity …

The Essential Role Of Courts For Supporting Innovation, Erin O'Hara O'Connor, Christopher R. Drahozal

Scholarly Publications

Commercial parties commonly resolve their disputes in arbitration rather than courts. In fact, some estimate that as many as 90 percent of international commercial contracts opt for arbitration of future disputes, and others claim that some industries never resort to courts. However, a study of arbitration clauses in a wide variety of contracts, including franchise agreements, CEO employment contracts, technology contracts, joint venture agreements and consumer cell phone contracts, reveals that parties very often carve out a right to resort to courts for the resolution of claims designed to protect information, innovation, and reputation. Studies of international and cross-border contracts …

“Sticky” Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal

Scholarly Works

We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court’s decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent …

Effect Of Bribery In International Commercial Arbitration, Harshad Pathak, Pratyush Panjwani, Divya Srinivasan, Punya Varma

Harshad Pathak

The issue of bribery in international commercial arbitration throws up complex issues throughout the proceedings. The given paper addresses the three procedural concerns associated with claims tainted by bribery – arbitrability, admissibility, and investigative powers of arbitral tribunal. Regarding arbitrability, it is amply clear that claims tainted by bribery are no longer non-arbitrable in nature. However, an arbitral tribunal ought to proceed to the merits of the dispute only in the circumstance that such claims are found to be admissible before the tribunal. With respect to admissibility of such claims, the authors suggest that if bribery is shown to exist, …

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 …