Dispute Resolution and Arbitration Commons^™

Extending The Reach Of The Chinese Labor Law: How Does The Supreme People's Court's 2006 Interpretation Transform Labor Dispute Resolution, Jill E. Monnin

Washington International Law Journal

Chinese workers are taking advantage of the dispute resolution tools that legal reform has provided in the past decade, including mediation, arbitration, and litigation. Despite a history of resolving disputes through informal mediation, more and more workers are relying on the new pathways of arbitration and civil suits in local courts. The 1993 Regulations on the Resolution of Enterprise Labor Disputes and the 1994 Labor Law facilitated workers’ access to formal legal forums. Then, in 2006, a Supreme People’s Court (“SPC”) interpretation made a number of important changes to the application of the Labor Law and workers’ access to dispute …

The Antinomies Of The (Continued) Relevance Of Icsid To The Third World, Ibironke T. Odumosu

San Diego International Law Journal

The international law on foreign investment is commonly accepted as one of the most controversial areas of international law. Not only does international investment law lack clear rules on investment promotion and protection, this area of the law has always generated opposing rules, and implicates divergent interests in the process. In the face of unclear rules, and against the backdrop of the need to protect foreign investment through the internationalization of investment dispute settlement, and the position that this will facilitate investment flows to Third World states, the World Bank established the International Centre for the Settlement of Investment Disputes …

Regulatory Marketing Approval For Pharmaceuticals As A Non-Tariff Barrier To Trade: Analysis Under The Wto's Agreement On Technical Barriers To Trade, Mary Hess Eliason

San Diego International Law Journal

At a fundamental level, pharmaceuticals serve two roles: both as a cure for disease and as a product. As a cure for disease, a drug's value cannot be quantified because it saves lives. As a product, profit analysis shapes every step of a drug's progression to market. In least developed nations the barriers to drug access are not solely economic. National regulatory systems for market approval are being used to prevent external pharmaceutical manufacturers from participating in a national market. This article will address how the regulatory framework of pharmaceutical registration may serve as a barrier to trade in drugs, …

What Process Is Due In The Adjudication Of Erisa Claims?, 40 J. Marshall L. Rev. 811 (2007), Mark D. Debofsky

UIC Law Review

No abstract provided.

Tearing Down The Great Wall: The New Generation Investment Treaties Of The People's Republic Of China, Stephan W. Schill

Cardozo Journal of International and Comparative Law

The People's Republic of China (PRC or China) has emerged as the world's premier destination of foreign investment in the developing world and is continuously strengthening its position as a source of outward foreign investment, notably in Asia and Africa. In this context, the PRC has concluded over 110 bilateral investment treaties (BITs) that grant protection against expropriation and establish other standards of treatment for foreign investors in China and Chinese investors abroad. While the PRC was originally hesitant regarding international investment protection, the country started, beginning in the late 1990s, entering into new generation BITs that break with her …

Selective Prosecution In Russia - Myth Or Reality?, Yelina Kvurt

Cardozo Journal of International and Comparative Law

The note examines the issue of selective prosecution, focusing on the case of Mikhail Khodorkovsky, and argues that the Russian legal system lacks an explicit defense against such practices, which violate constitutional guarantees of equality before the law. It advocates for the adoption of a legal standard to address selective prosecution, drawing parallels with the U.S. legal framework while acknowledging the need to adapt it to Russia's unique judicial context.

Restorative Justice And The Pre-Conditions For Grace: Taking Victim's Needs Seriously, Ellen Waldman

Cardozo Journal of Conflict Resolution

This essay surveys the question of victim need from a different vantage point. It takes as its starting point the voices of actual victims as recorded by researchers in the field. It reports on three studies and the linkage they uncover between victim distress and attitudes toward justice and reconciliation. What they reveal belies a simple notion of victim need and suggests that restorativists should move warily as they seek to reshape the criminal justice system into more harmony-producing forms. Victim-offender encounters, truth-telling, and moves toward apology and reconciliation are appealing in the abstract; but data suggests that victims whose …

Consent In Mediation , Jacqueline Nolan-Haley

Faculty Scholarship

This brief comparative analysis of the United States and English approaches to mediation consent raises policy questions about the merits of mandatory mediation. Is England on a better course by requiring consent at the front end of mediation? Will mediation be stronger in the long run when it has a consensual foundation? Arguably, the use of cost sanctions in England's mediation regime makes it close to a mandatory mediation system. For some litigants, participating in mediation will be potentially less costly than arguing that it was not unreasonable to refuse mediation. But despite the mandatory gloss, mediation is still a …

Teaching Comparative Perspectives In Mediation: Some Preliminary Reflections Symposium: Transatlantic Perspectives On Alternative Dispute Resolution, Jacqueline Nolan-Haley

Faculty Scholarship

The study of comparative law and legal process in any subject area offers the usual advantages of learning about other countries' legal cultures and developing a deeper understanding of one's own legal tradition. In the case of mediation, it is important to evaluate critically what is learned through comparative analysis. Mediation is still developing as a profession; it is newly institutionalized in legal cultures; and, it is relatively new to the canon of legal education. National legal traditions have responded differently to the implementation of mediation. Thus, lawyers must have an understanding of the differences and nuances in mediation law …

The Un: A Situation Report, Benjamin Zawacki

ExpressO

The UN: A Situation Report is a review of two recent books on the past, present, and future of the UN; in short, of its relevance in a changing and uni-polar world at the end of Kofi Annan’s two terms as Secretary-General. The books’ focus is both on the organization’s successes and failures, and its efforts at self-reform in the face of near-constant criticism. They are reviewed as individually divergent in quality but as a formidable “situation report” when read in tandem. Paul Kennedy’s The Parliament of Man, save for its first of three parts, is generally criticized for its …

Charting Developments Concerning Punitive Damages: Is The Tide Changing?, John Y. Gotanda

Working Paper Series

This essay discusses a number of developments outside of the United States concerning punitive damages, which may ultimately signal a change in the way other countries view American awards of such damages.

To date, courts in many countries have refused to recognize and enforce American punitive damages awards on the ground that they violate the host country’s public policy. In most civil law countries, such as France and Germany, penal damages can only be ordered in criminal proceedings; a civil award of such damages has been viewed as contrary to ordre public. In common law countries, while punitive damages generally …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

How The Other Half Lives (Revisited): Twenty Years Since Midler V. Ford - A Global Perspective On The Right Of Publicity, Alain Lapter

ExpressO

For celebrities, name and image are, arguably, two of their most valuable assets. From headlining a movie, to starring in a commercial, to endorsing a product, a celebrity’s persona is potentially worth thousands to millions of dollars. However, this intangible commodity’s worth is often siphoned off by those who appropriate a celebrity’s name or image without authorization or remuneration, thus potentially decreasing the property’s value. In order to stifle this unjust enrichment, celebrities greatly desire the absolute right to control the commercial exploitation of their name and likeness.

In this article, I examine the current state of the right of …

Damages In Lieu Of Performance Because Of Breach Of Contract, John Y. Gotanda

Working Paper Series

In contract disputes between transnational contracting parties, damages are often awarded to compensate a claimant for loss, injury or detriment resulting from a respondent’s failure to perform the agreement. In fact, damages may be the principal means of substituting for performance or they may complement other remedies, such as recision or specific performance.

Damages for breach of contract typically serve to protect one of three interests of a claimant: (1) performance interest (also known as expectation interest); (2) reliance interest; or (3) restitution interest. The primary goal of damages in most jurisdictions is to fulfil a claimant’s performance interest by …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Judicial Intervention In International Arbitration: A Comparative Study Of The Scope Of The New York Convention In U.S. And Chinese Courts, Jian Zhou

Washington International Law Journal

The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards has been praised as one of the most efficient and powerful multilateral legal instruments in promoting international commercial arbitration. The implementation of the Convention, however, depends heavily on the domestic legal mechanisms of contracting states. By strategically adjusting its scope, local courts may expand or limit the benefits of the Convention in a significant way. The comparison between the practices of United States and Chinese courts present two extreme examples of this scope issue. There is considerable room to improve the domestic implementation of the Convention in …

China International Economic Trade Arbitration Commission In 2006: New Rules, Same Results?, Benjamin O. Kostrzewa

Washington International Law Journal

In May of 2005, the China International Economic Trade Arbitration Commission (“CIETAC”) was updated with new rules designed to bring it into conformity with international arbitration standards. The rules were the most recent efforts by the Chinese government to provide foreign companies with an alternative to the Chinese judiciary, which is often considered parochial, unsophisticated, and unable to handle modern business conflicts. The new rules cure many of the problems associated with arbitration in China and have created a predominantly fair and professional dispute resolution forum. Currently, CIETAC suffers more from award collection problems rather than problems in its rules …

Sovereignty Of Aves Island: An Argument Against Standardized, Compulsory Arbitration, Michael S. Garrison

ExpressO

States engaging in preemptive dispute resolution frequently call upon adjudicative or diplomatic means to resolve territorial boundary disputes and comply with international law. In light of reduced efficacy of such dispute resolution mechanisms, however, some propose that all states should engage in compulsory, standardized arbitration subject to International Court of Justice (“I.C.J.”) review to resolve their boundary disputes. Although arbitration is an effective method of international dispute resolution in certain cases, standardized arbitration will not effectively resolve all boundary disputes between neighbor states.

This Comment argues against the proposition that the United Nations (“U.N.”) implement a standardized arbitration mechanism and …

The Unexplored Option: Jewish Settlements In A Palestinian State, David M. Phillips

ExpressO

The withdrawal of Israeli settlers and soldiers from the Gaza Strip, the recent Hamas victory in the Palestinian Authority elections, and the results of the Israeli elections in which the newly-formed Kadima Party received a plurality of the votes have all focused attention upon the fate of Israeli Jewish settlements on the West Bank. Most parties consider the continued existence of the settlements as precluding a peaceful resolution of the Israeli-Palestinian conflict and their establishment as having violated international law. The assumption that their presence precludes peace is premised primarily on the assumption that Israeli settlements will eventually mean Israeli …

Land Conflict Management Under A Tree Cropping System: The Case Of Theobroma Cacao In Southwestern Nigeria, E. O. Idowu

Cardozo Journal of Conflict Resolution

General observation and systematic research have consistently indicated that a sizeable portion of farmlands within the cacao growing communities of southwestern Nigeria is tenant-operated. This article will focus primarily on a specific study area within Southwestern Nigeria. Within the study area, the cultivation of cacao, mainly for export, is of primary importance to the farmers. Economic and social activities revolve around the crop with annual festivals and ceremonies held during the periods immediately after the annual sale of the crop. Until 1985, the study area produced about 40% of total Theobroma cacao (cacao) output for southwestern Nigeria. This share has …

Promotion Of International Commercial Arbitration And Other Alternative Dispute Resolution Techniques In Ten Southern Mediterranean Countries, Giuseppe De Palo, Linda Costabile

Cardozo Journal of Conflict Resolution

As the strategic economic partner of the Southern Mediterranean (MEDA) region, the European Union (EU) seeks to promote effective mechanisms of development through increased industrial cooperation in order to create a Euro-Mediterranean area of shared prosperity. The first Euro-Mediterranean Conference of Ministries of Industry, held in June of 1996 in Brussels, listed among its priority objectives 1) the formation of a fair judicial and administrative framework for investment; and 2) the establishment and support of Small and Medium Enterprises (SMEs) through the development of regional networks. However, recent reports on world trade and investment describe the MEDA region as an …

Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong

Faculty Publications

Britain's Lord Denning once said that “as a moth is drawn to the light, so is a litigant drawn to the United States.” Certainly, as a pro-arbitration state and a signatory to various international conventions concerning the enforcement of foreign arbitral awards, the United States seems a natural place to bring an action to enforce an arbitral award against a foreign state or state agency. However, suing a sovereign has not traditionally been a simple task in the United States or elsewhere. Most nations grant foreign states the presumption of immunity, thus denying that their domestic courts have jurisdiction to …

Teaching Adr In The Labor Field In China, Theodore J. St. Antoine

Articles

My first visit to China, in 1994, was purely as a tourist, and came about almost by accident. In late September of that year I attended the XIV World Congress of the International Society for Labor Law and Social Security in Seoul, South Korea. In the second week of October I was scheduled to begin teaching a one-term course in American law as a visiting professor at Cambridge University in England. Despite my hazy notions of geography, I realized it made no sense to return to the United States for the intervening week. The obvious solution was to continue flying …

Begging For Justice? Or, Adaptive Jurisprudence? Initial Reflections On Mandatory Adr To Enforce Women's Rights In Rwanda, Phyllis E. Bernard

Cardozo Journal of Conflict Resolution

This Article presents the author's personal reflections on the promise and perils involved in blending rules of modern law with traditional values of African culture. The project began from a basic premise that both Americans and Rwandans should proceed with caution when expanding the privatization of public justice. Nevertheless, an outside observer's caution must be balanced with respect for a nation's right to self-determination, even when those choices may clash with generally accepted ADR theory as developed in the United States. This Article suggests that we can all learn much from Rwanda's bold, pragmatic experiment in redefining the essential nature …

An Unfair Advantage: Comparing The International Court Of Justice To A Form Of Adr And Why It Was Inappropriate For The Court To Issue An Advisory Opinion In The Case Of Israel's Separation Fence, Mimi Trenk

Cardozo Journal of Conflict Resolution

This Note will begin with a concise background of the ArabIsraeli conflict. It will then explain the three arguments presented to the Court as to why it should have declined to exercise jurisdiction and the Court's response. It will explore the similarities of non-binding arbitration, as a form of alternative dispute resolution, and the Advisory Opinion. It will then examine whether, in the interests of justice, it was appropriate for the Court to issue the opinion, even though it is considered to be non-binding. This Note will examine the Israeli Supreme Court as the proper forum to enforce the rights …

How To Deal With Multi-Party Nominations Of Arbitrators In International Commercial Arbitration - A Comparative Study Of Appointment Procedures With Emphasis On U.S.-European Commerce Between Private Entities, Marie-Beatrix Tupy

LLM Theses and Essays

The nomination procedure for the Arbitral Tribunal in commercial arbitration is one of the crucial points in the arbitral procedure. Parties have to have in mind the provisions of the New York Convention regarding the setting aside of an award in case of a failure during the nomination procedure of the tribunal. Besides from the famous Dutco case on multi-party arbitrations and their nomination procedures have received highest interest within the international arbitral world. As the thesis will comparatively show, all major arbitral institutions have updated their Rules, countries have even rendered new legislation with respect to the nomination procedure …

Domestic Violence In Ghana: The Open Secret, Nancy Chi Cantalupo, Lisa Vollendorf Martin, Kay Pak, Sue Shin

Georgetown Law Faculty Publications and Other Works

This report discusses the findings of a Georgetown Law International Women’s Human Rights Clinic fact-finding team that traveled to Ghana, Africa in March 2003 to investigate domestic violence. The report reviews the contours of the domestic violence problem in Ghana and outlines the ways in which Ghanaian law and procedure was insufficiently addressing the problem at the time. Its chief findings include that the Ghanaian laws existing in 2003 inadequately punished perpetrators and protected victims of domestic violence and that court and police enforcement of the existing law was lacking, including because the government was allowing the removal of domestic …

Special Methods And Tools For Educating The Transnational Lawyer, Duncan Bentley, John Wade

Journal of Legal Education

No abstract provided.

The Shari'a Factor In International Commercial Arbitration, Faisal M. Kutty

ExpressO

The world has witnessed a phenomenal growth in commercial disputes transcending national borders due to our increasingly interrelated and globalized world economy. In addition to issues in interpretation of commercial agreements and practices, differences in custom, language, culture and religion will continue to fuel conflicts and disagreements between commercial players. Over the last few decades there have been growing commercial interaction between Western companies and their Middle Eastern counterparts. Given this interaction and the great geo-political and economic importance of this region, it is imperative that Western lawyers and dispute resolution professionals have a reasonable grasp of the general principles …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.