Dispute Resolution and Arbitration Commons^™

Barnacles, Aristocracy And Truth Denial: Three Not So Beautiful Aspects Of Contemporary Mediation, James R. Coben

Cardozo Journal of Conflict Resolution

Like any fairy tale, the Sleeping Beauty story has many variations. Most are far more complicated and sinister than the Disneyesque version that the public is familiar with. The same is true with mediation. On the surface, it is a beautiful story-self-determination, mediator neutrality, and party empowerment. In practice, especially in litigated cases, something else quite dark is actually transpiring: parties are literally locked away from one another. Mediators routinely testify and often actively "assist parties" to see the world as the mediators and the parties' lawyers do. Settlement is a prime directive and driving force. Institutionalization through statute and …

New Weaknesses: Despite A Major Win, Arbitration Decisions In 2014 Increase The Us’S Future Exposure To Litigation And Liability, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In 2014, the US continued its overall record of success in defending investment treaty claims. But it did suffer losses on a number of important issues, and those losses will render the US (and its treaty parties) vulnerable to future claims, litigation expense, and liability. The US’s recent losses, which have thus far been largely ignored in commentary on the US’s experiences in investment arbitration, are highlighted in this briefing note.

Dramatic Sideshows At The Hearing, George A. Bermann

Faculty Scholarship

International arbitration has plenty of dramatic moments, strewn across the arbitration life cycle. They can surface quite early, as in the context of petitions for interim relief, document production, challenges to the arbitrator or various dispositive motions. They are less likely to occur at the post-award stage (i.e. annulment or opposition to the recognition or enforcement of awards), due in part to the fact that that stage typically plays out in the sober atmosphere of a national court. But more often than not, the drama associated with international arbitration takes place in and around the arbitral hearing room.

In my …

Notes On The German Economy And Energy Ministry's Proposal For Reformed Investor-State Dispute Settlement (Isds), Gus Van Harten

Osgoode Legal Studies Research Paper Series

These notes provide a general reaction to a proposal by the German economy and energy ministry for ISDS in a treaty between Europe and the U.S. Overall, the proposal takes only a minority of the steps needed to make ISDS independent, fair, open, subsidiary, and balanced. I suggest that the appropriate approach remains to reject ISDS in new treaties (especially among Western developed countries). The proposal would be a good starting point for replacing ISDS in existing treaties with developing or transition countries – but that is clearly not its purpose.

A Parade Of Reforms: The European Commission's Latest Proposal For Isds, Gus Van Harten

Osgoode Legal Studies Research Paper Series

The European Commission's most recent proposal for ISDS reflects a move away from essentially fake reforms to something potentially more meaningful. However, it is insufficient to satisfy the criteria of independence, fairness, openness, subsidiarity, and balance and does not appear reliable until backed by clear language and a negotiating red line for the proposed Canada-Europe CETA and any other agreement providing for ISDS.

The European Commission's Push To Consolidate And Expand Isds: An Assessment Of The Proposed Canada-Europe Ceta And Europe-Singapore Fta, Gus Van Harten

Osgoode Legal Studies Research Paper Series

The purpose of this paper is to evaluate the European Commission’s approach to investor-state dispute settlement (ISDS) in the proposed CETA with Canada and FTA with Singapore. The text on ISDS in both agreements is evaluated according to general criteria of independence, fairness, openness, and balance. The main conclusion reached is that there is no significant difference between the CETA and FTA when it comes to ISDS. With the qualified exception of the criterion of openness, both agreements fall well short of satisfying the criteria. As such, neither agreement offers a significant improvement on the U.S. model of ISDS and, …

The Icsid Under Siege: Unasur And The Rise Of A Hybrid Regime For International Investment Arbitration, Kendall Grant

Osgoode Legal Studies Research Paper Series

The legitimacy and effectiveness of the International Centre for Settlement of Investment Disputes (ICSID) — a dispute resolution body established in 1966 under the auspices of the World Bank — is a matter of spirited debate. It has been argued by some that ICSID’s ideological and procedural bias impedes fairness and by others that its complexity and cost restrict access to justice; many contend that the absence of an appeal process has exacerbated uncertainty and unpredictability. In 2009, in the wake of rampant dissatisfaction and ideological challenge, especially on the part of Latin American states, Ecuador proposed the creation of …

Mediation: The Best And Worst Of Times, Jacqueline Nolan-Haley

Cardozo Journal of Conflict Resolution

At this period in the evolution of dispute resolution, mediation is in a unique time zone, similar to what Dickens described in a Tale of Two Cities, as the best and worst of times, the seasons of Light and Darkness. It is the best of times, the season of Light and a time of joy in honoring human connections, as mediation is widely embraced in the public and private sectors. From government agencies and courts to corporations and United Nations peacemaking units, mediation offers a vision of hope in the midst of drowning bureaucracies, clogged dockets, corporate scandals and …

The Extension Of The Arbitral Agreement To Non-Signatories In Europe: A Uniform Approach?, Eduardo Silva Romero, Luis Miguel Velarde Saffer

American University Business Law Review

No abstract provided.

Repatriation Of Korean Cultural Property Looted By Japan-Can A Sincere Apology Resolve The Centuries-Old Korea/Japan Disputes?, Melissa (Youngjae) Koo

Cardozo Journal of Conflict Resolution

This Note will focus on the disputes between Korea, both North and South Korea, and Japan surrounding Korean cultural property looted by Japan and will explore concrete solutions for resolving such issues through alternative dispute resolution-more specifically, an apology. It will consider two predominant exampies of cultural property looting, which occurred during Japanese invasions of Korea-first, at the end of the sixteenth century and, the second, from 1910 to 1945. Additionally, Japan has frequently been characterized as being a "significant market" for stolen cultural property. It is reported that there are at least 34,157 objects of Korean origin in Japan, …

Breaking The Impasse: A Two-Pronged Approach For Resolving Sovereign Debt Holdout Disputes, Alexander Shapos

Cardozo Journal of Conflict Resolution

Sovereign debt holdout disputes implicate billions of dollars. For nearly a decade, one such dispute has led to a de facto embargo on Argentina as well as an inability for investment funds to enforce multibillion-dollar judgments. Thus, it is significantly in the interests of both future sovereign bond issuers and future creditors to preemptively avoid unproductive impasses. But with no existing formal bankruptcy regime, sovereigns are left to litigate, arbitrate, or negotiate their debt disputes. This Note proposes that litigation is an inappropriate remedy to resolve such disputes-and instead, it proposes a two-pronged approach for preventing and resolving disputes. The …

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 …

Making Peace With Your Enemy: Nelson Mandela And His Contributions To Conflict Resolution, Jean R. Sternlight, Andrea Schneider, Carrie Menkel-Meadow, Robert Mnookin, Richard Goldstone, Penelope Andrews

Articles & Chapters

This is a transcription of the tenth anniversary celebration of the Saltman Center for Conflict Resolution at the William S. Boyd School of Law, University of Nevada, Las Vegas. The event was held in honor of NelsonMandela, and included a panel discussion about his contributions to the dispute resolution field.

Panelists included Dean Penelope Andrews of the University of Cape Town Faculty of Law, Prof. Carrie Menkel-Meadow of the U.C. Irvine School of Law, Prof. Robert Mnookin of Harvard Law School, and Judge Richard Goldstone, a former member of the Constitutional Court of South Africa.

An introduction was made by …

The Future Of International Mediated Settlement Agreements: Of Conventions, Challenges And Choices, Eunice Chua

Research Collection Yong Pung How School Of Law

In 2002, UNCITRAL developed the Model Law on International Commercial Conciliation.1 Although at that stage there was a strong effort to develop a uniform enforcement mechanism, the ultimate conclusion was that because of the great variance in the technicalities of domestic procedural laws, harmonisation by way of uniform legislation was not feasible (UNCITRAL 2004: 55). Eventually, Article 15 merely provided that: If the parties reach and sign an agreement settling a dispute, that settlement agreement is binding and enforceable … [the enacting State inserts a description of the method of enforcing settlements agreements or refers to provisions governing such enforcement].

Religiosity In Constitutions And The Status Of Minority Rights, Brandy G. Robinson

Cultural Encounters, Conflicts, and Resolutions

Minority rights and religion have never been topics that are simultaneously considered. However, arguably, the two have relevance, especially when combined with the topic and theory of constitutionalism. Historically and traditionally, minorities have been granted certain rights and have been denied certain rights under various constitutions. These grants and denials relate to cultural differences and values, arguably relating to a culture’s understanding and interpretation of religion.

This article explores the relationship and status of minority rights as it relates to religiosity and constitutionalism. Essentially, there is a correlation between these topics and research shows where certain nations have used religion …

American And Other National Variations On The Theme Of International Commercial Arbitration, Thomas E. Carbonneau

Georgia Journal of International & Comparative Law

No abstract provided.

International Law - Enforcement Of International Centre For Settlement Of Investment Disputes Arbitral Awards In The United States - Signatories To The Convention On The Settlement Of Investment Disputes Between States And Nationals Of Other States Are Not Entitled To Sovereign Immunity With Respect To Enforcement Of Icsid Arbitral Awards, Liberian Eastern Timber Corp. V. Government Of Republic Of Liberia, 650 F. Supp. 73 (S.D.N.Y.1986), Dorothy B. Franzoni

Georgia Journal of International & Comparative Law

No abstract provided.

Development Through Trade Disputes: Building A Reputation Using The World Trade Organization's Dispute Settlement System, Jason L. Holliday

West Virginia Law Review

No abstract provided.

The Pacific War, Continued: Denationalizing International Law In The Senkaku/Diaoyu Island Dispute, Joseph Jackson Harris

Georgia Journal of International & Comparative Law

No abstract provided.

The Distant Island Problem: The Arbitration On The Delimitation Of The Maritime Zones Around The French Collectivite Teritoriale Of Saint-Pierre-And-Miquelon, Merritt R. Blakeslee

Georgia Journal of International & Comparative Law

No abstract provided.

International Investment Agreements: Are Their Policy Aims Served By Their Broad Definitions Of Covered “Investors” And “Investments”?, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

With negotiation of “mega-treaties” such as the 12-country Trans-Pacific Partnership (TPP) and investment treaties between the EU and other large economies such as Canada and the United States, international investment agreements (IIAs) are gaining fame and raising a host of important policy questions. Among those questions are who/what the treaties benefit and at what cost.

Houson Putnam Lowry, Critical Sourcebook Annotated: International Commercial Law And Arbitration (Little, Brown & Co., Boston; Toronto; London, 1991), Pp. Xxvi + 532, Carol A. Watson

Georgia Journal of International & Comparative Law

No abstract provided.

Enforcement Of Arbitration Agreements: The Severability Doctrine In The International Arena - Republic Of Nicaragua V. Standard Fruit Co., 927 F.2d 469 (9th Cir. 1991)., Jennifer Bagwell

Georgia Journal of International & Comparative Law

No abstract provided.

The Growing Role Of Customized Consent In International Commercial Arbitration, Christofer Coakley

Georgia Journal of International & Comparative Law

No abstract provided.

How Does The European Union Solve Crises - With Solutions Or By Avoidance? A Study Of The "Mad Cow Disease" Crisis, Salmeh K. Fodor

Georgia Journal of International & Comparative Law

No abstract provided.

The Dispute Settlement Systems Of Wto And Nafta - Analysis And Comparison, Patrick Specht

Georgia Journal of International & Comparative Law

No abstract provided.

The Issuance Of Interim Measures In International Disputes: A Proposal Requiring A Reasonable Possibility Of Success On The Underlying Merits, Jarrod Wong

Georgia Journal of International & Comparative Law

No abstract provided.

Enforcement Of Foreign Arbitration Agreements And Awards: Application Of The New York Convention In The United States, Louis Del Duca, Nancy A. Welsh

Faculty Scholarship

Internationalc ommercial arbitrationp rovides customized and efficient resolution for disputes arising out of transnational commerce. When arbitration occurs in states that have ratified the New York Convention, the process also offers enforceable outcomes even in states other than the one where the arbitration occurred. The United States ratified the New York Convention in 1970, and its courts overwhelmingly enforce both arbitration agreements and arbitral awards. There are exceptions, however, and American courts require the use of certain procedures.

This Article provides a brief survey of American courts' recognition and enforcement of foreign arbitration agreements and arbitral awards. It begins by …

Flights Of Fancy And Fights Of Fury: Arbitration And Adjudication Of Commercial And Political Disputes In International Aviation, Paul S. Dempsey

Georgia Journal of International & Comparative Law

No abstract provided.

Creditor Participation In The Hipc Debt Relief Initiatives: The Case Of Guyana, Magnus Saxegaard

Georgia Journal of International & Comparative Law

No abstract provided.