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Articles 451 - 480 of 594

Full-Text Articles in Dispute Resolution and Arbitration

East Meets West: An International Dialogue On Mediation And Med-Arb In The United States And China, Thomas J. Stipanowich, Jung Yang, Jay Welsh, Chen Qiming, Peter Robinson, Tan Jinghui, Chen Guang, Jeff Kichaven, Denise Madigan, Wang Hongsong, Zhang Jianhua Feb 2012

East Meets West: An International Dialogue On Mediation And Med-Arb In The United States And China, Thomas J. Stipanowich, Jung Yang, Jay Welsh, Chen Qiming, Peter Robinson, Tan Jinghui, Chen Guang, Jeff Kichaven, Denise Madigan, Wang Hongsong, Zhang Jianhua

Pepperdine Dispute Resolution Law Journal

This Second Beijing Arbitration Commission (BAC)/Straus Institute for Dispute Resolution International Videoconference, following up on last year's successful inaugural program, will provide different perspectives on the current BAC initiative and evolving attitudes toward mediation and med-arb. Topics include: (1) the development and current state of business mediation in the U.S.; (2) the challenges and opportunities confronting China in developing stand-alone business mediation; (3) reflections on the skills necessary for mediators; (4) common pitfalls in mediation; (5) perspectives on med-arb (as opposed to stand-alone mediation); and (6) how to most effectively use mediation in conjunction with arbitration procedures.

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Balancing Transparency: The Value Of Administrative Law And Mathews-Balancing To Investment Treaty Arbitrations, Cornel Marian Feb 2012

Balancing Transparency: The Value Of Administrative Law And Mathews-Balancing To Investment Treaty Arbitrations, Cornel Marian

Pepperdine Dispute Resolution Law Journal

Greater reliance on arbitration to resolve cross-border disputes raises concern with the adequacy of arbitration procedural rules. In investment arbitration, transparency in the arbitrable proceedings is closely linked to the public need to review state conduct. This article draws on the responsibility of the arbitrator to balance the interests involved in an arbitration. Due consideration is given to the Global Administrative Law Project, which views many challenges affecting arbitration as the first step towards developing a global unifying standard of procedure. American domestic administrative law provides sufficient guidance in determining adequate procedure. The Mathews standard is of great value to …

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The Case Against Maritime Class Arbitration: A Brief Policy Argument, Landon R. Schwob Feb 2012

The Case Against Maritime Class Arbitration: A Brief Policy Argument, Landon R. Schwob

Pepperdine Dispute Resolution Law Journal

On April 27, 2010, the United States Supreme Court decided a case that will have far-reaching implications for virtually all sectors within the arbitration industry, including the subject of this article-maritime arbitration. The question presented in Stolt-Nielsen v. AnimalFeeds International Corp. dealt with class arbitration and whether its imposition on parties whose arbitration clauses are silent on that issue is consistent with the Federal Arbitration Act (FAA). This article will primarily examine the history and viability of class arbitration-and arbitration in general-in the far more narrow context of maritime and the admiralty. Stolt-Nielsen provides an excellent backdrop against which to …

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Arbitration Hurdles Facing Foreign Investors In Russia: Analysis Of Present Issues And Implications, Elliot Glusker Feb 2012

Arbitration Hurdles Facing Foreign Investors In Russia: Analysis Of Present Issues And Implications, Elliot Glusker

Pepperdine Dispute Resolution Law Journal

Russia has come a long way since the collapse of the Soviet Union in 1991, but there are still some structural reforms that need to take place in order to increase investor confidence. In 2007, one hundred billion dollars was invested in Russia from overseas, which represents a record for a developing market economy. However, direct foreign investment in Russia is still low compared to other European nations. Foreign investment is one of Russia's main strategies for improving the long-term health of the economy. There is a lot of promise for future economic growth, but some recent actions by the …

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Clouded Diamonds: Without Binding Arbitration And More Sophisticated Dispute Resolution Mechanisms, The Kimberley Process Will Ultimately Fail In Ending Conflicts Fueled By Blood Diamonds , Shannon K. Murphy Feb 2012

Clouded Diamonds: Without Binding Arbitration And More Sophisticated Dispute Resolution Mechanisms, The Kimberley Process Will Ultimately Fail In Ending Conflicts Fueled By Blood Diamonds , Shannon K. Murphy

Pepperdine Dispute Resolution Law Journal

In 2003, under an initiative of the United Nations (U.N.), various nations of the world gave life to the Kimberley Process Certification Scheme (KPCS)-a method by which consumers of all levels could know the origin of their diamonds-with the Scheme only certifying those harvested from legal, government-run mines. The Scheme's drafters believed that, if given the choice, consumers would choose to buy diamonds mined legally, with profits flowing to legitimate sources of power. However, the KPCS as it stands is voluntary and lacks the teeth needed to deter its violators. The KPCS lacks a binding arbitration agreement and needs a …

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What Constitutes An "Agreement In Writing" In International Commercial Arbitration? Conflicts Between The New York Convention And The Federal Arbitration Act, S. I. Strong Jan 2012

What Constitutes An "Agreement In Writing" In International Commercial Arbitration? Conflicts Between The New York Convention And The Federal Arbitration Act, S. I. Strong

Faculty Publications

This article investigates whether and to what extent a party must produce an “agreement in writing” when seeking to enforce an international arbitration agreement or award in a U.S. federal court. This issue has recently given rise to both a circuit split and a petition for certiorari to the U.S. Supreme Court, and involves matters of formal validity as well as federal subject matter jurisdiction. The problem arises out of subtle differences in the way an “agreement in writing” is defined in the Federal Arbitration Act (FAA) and the 1958 United Nations Convention on the Recognition and Enforcement of Foreign …

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Penalty Clauses And The Cisg, Jack Graves Jan 2012

Penalty Clauses And The Cisg, Jack Graves

Scholarly Works

Commercial agreements often provide for “fixed sums” payable upon a specified breach. Such agreements are generally enforced in civil law jurisdictions. In contrast, the common law distinguishes between “liquidated damages” and “penalty” clauses, enforcing the former, while invalidating the latter as a penalty. The UN Convention on Contracts for the International Sale of Goods (CISG) does not directly address the payment of “fixed sums” as damages, and the validity of “penalty” clauses has, traditionally, been relegated to otherwise applicable domestic national law under CISG Article 4. This traditional orthodoxy has recently been challenged—suggesting that the fate of a penalty clause …

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The U.S. Proposal For An Intellectual Property Chapter In The Trans-Pacific Partnership Agreement, Sean Flynn, Brook Baker, Margot Kaminski, Jimmy Koo Jan 2012

The U.S. Proposal For An Intellectual Property Chapter In The Trans-Pacific Partnership Agreement, Sean Flynn, Brook Baker, Margot Kaminski, Jimmy Koo

Scholarly Articles in Law Reviews & Journals

This article takes advantage of the breach in the Trans-Pacific Partnership negotiation’s secrecy to contribute to a new and growing collection of published scholarship on leaked proposals for international intellectual property agreements as they are being negotiated. We begin with the general provisions of the agreement, which define its relationship to the multilateral system. We then progress to analysis of some of the most important copyright, patent and data protection, and enforcement sections of the proposal, before providing some concluding observations. Our ultimate conclusion is that the U.S. proposal, if adopted, would upset the current international framework balancing the interests …

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Arbitrating Trade Disputes (Who's The Boss?), Petros C. Mavroidis Jan 2012

Arbitrating Trade Disputes (Who's The Boss?), Petros C. Mavroidis

Faculty Scholarship

World Trade Organization (“WTO”) dispute settlement has attracted a lot of interest over the years and there is a plethora of academic papers focusing on various aspects of this system. Paradoxically, there is little known about the identity of the WTO judges: since, at the end of the day, the WTO has evolved into the busiest forum litigating state-to-state disputes. There are many writings regarding the appointment process in other international tribunals. At the risk of doing injustice to many papers on this issue, we should mention the following works: Terris et al. look at various courts and especially those …

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One (Firm) Is Not Enough: A Legal-Economic Analysis Of Ec-Fasteners, Chad P. Brown, Petros C. Mavroidis Jan 2012

One (Firm) Is Not Enough: A Legal-Economic Analysis Of Ec-Fasteners, Chad P. Brown, Petros C. Mavroidis

Faculty Scholarship

The WTO’s Appellate Body (AB) dealt with a number of issues for the first time in the Report of EC-Fasteners. Importantly, the AB discussed the consistency of the European Union (EU) regulation with the multilateral rules on the conditions for deviating from the obligation to calculate individual dumping margins. Although China formally won the argument, the AB may have opened the door to treat China as a non-market economy (NME) even beyond 2016 when China’s NME-status was thought to expire under the terms of China’s 2001 WTO Accession Protocol. The AB further dealt with numerous other issues ranging from statistical …

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Arbitration And Antitrust: Navigating The Contours Of Mandatory Law, Charles H. Brower Ii Dec 2011

Arbitration And Antitrust: Navigating The Contours Of Mandatory Law, Charles H. Brower Ii

Law Faculty Research Publications

No abstract provided.

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Through The Looking Glass: Understanding Social Science Norms For Analyzing International Investment Law, Susan Franck, Calvin Garbin, Jenna Perkins Oct 2011

Through The Looking Glass: Understanding Social Science Norms For Analyzing International Investment Law, Susan Franck, Calvin Garbin, Jenna Perkins

Scholarly Articles in Law Reviews & Journals

When social science methods are being employed in a new context — such as the assessment of international investment law — there is value in exploring the underlying assumptions and normative baselines of the enterprise. This article and response address critiques about the methodology of an article in the Harvard International Law Journal by: (1) describing the value of social science in international investment law; (2) replicating the research using new methodologies to conduct more than 20 new tests that were still unable to ascertain the existence of a reliable relationship between development status and outcomes on the basis of …

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Rescuing The International Arbitral Model: Identifying The Problem In Natural Resources Trade And Development, Jacob R. Shaffer Sep 2011

Rescuing The International Arbitral Model: Identifying The Problem In Natural Resources Trade And Development, Jacob R. Shaffer

West Virginia Law Review

No abstract provided.

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The Icsid Effect? Considering Potential Variations In Arbitration Awards, Susan Franck May 2011

The Icsid Effect? Considering Potential Variations In Arbitration Awards, Susan Franck

Scholarly Articles in Law Reviews & Journals

The legitimacy of the World Bank's dispute resolution body - The International Centre for the Settlement of Investment Disputes (ICSID) - is a matter of heated debate. Some states have alleged that ICSID is biased, withdrawn from the ICSID Convention, and advocated creating alternative arbitration systems. Using pre-2007 archival data of the population of then- known arbitration awards, this Article quantitatively assesses whether ICSID arbitration awards were substantially different from arbitration awards rendered in other forums. The Article examines variation in the amounts claimed and outcomes reached to evaluate indicators of bias. The results indicated that there was no reliable …

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The Global Dimension Of The Current Economic Crisis And The Benefits Of Alternative Dispute Resolution, Rebecca Golbert Apr 2011

The Global Dimension Of The Current Economic Crisis And The Benefits Of Alternative Dispute Resolution, Rebecca Golbert

Nevada Law Journal

No abstract provided.

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Rationalizing Costs In Investment Treaty Arbitration, Susan Franck Mar 2011

Rationalizing Costs In Investment Treaty Arbitration, Susan Franck

Scholarly Articles in Law Reviews & Journals

International investment and related disputes are on the rise. With national courts generally unavailable and difficulties resolving disputes through diplomacy, investment treaties give investors a right to seek redress and arbitrate directly with states. The costs of these investment treaty arbitrations - including the costs of lawyers for both sides, as well as administrative and tribunal expenses - are arguably substantial. This Article offers empirical research indicating that even partial costs could represent more than 10% of an average award. The data suggested a lack of certainty about total costs, which parties had ultimate liability for costs, and the justification …

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Introductory Remarks: An Overview Of Investment Arbitration , Joshua Fellenbaum Jan 2011

Introductory Remarks: An Overview Of Investment Arbitration , Joshua Fellenbaum

Global Business Law Review

The topic I was asked to speak about today is investment arbitration. For those practitioners and scholars on the panel and in the audience who have experience in investment arbitration, you know that it contains a number of complex issues and nuances, so it is quite a tall task ahead of me. What I hope to do in the next twenty to twenty-five minutes is to provide you with a broad overview of investment arbitration. We will examine the structure of investment arbitration along with the substantive and procedural issues that tend to arise in investment disputes.

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Why Does The Complainant Always Win At The Wto?: A Reputation-Based Theory Of Litigation At The World Trade Organization, Matthew C. Turk Jan 2011

Why Does The Complainant Always Win At The Wto?: A Reputation-Based Theory Of Litigation At The World Trade Organization, Matthew C. Turk

Northwestern Journal of International Law & Business

World Trade Organization (WTO) litigation presents an empirical puzzle: complaining parties "win" close to 90 percent of cases, while standard theories of litigation predict a strong tendency towards a 50 percent plaintiff win-rate. This Article explains the high win-rate by examining the reputational costs and benefits of filing a case. The WTO's lack of centralized enforcement means that the consequence of a judgment is merely to disseminate information that alters a party's reputation for compliance with its trade obligations. Such a "reputational sanction" applies to both losing respondents and complainants. The result is that only cases with a very high …

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Overview Of International Arbitration In The Intellectual Property Context, Kenneth R. Adamo Jan 2011

Overview Of International Arbitration In The Intellectual Property Context, Kenneth R. Adamo

Global Business Law Review

Resolving intellectual property rights (“IPR”) issues through alternative dispute resolution (“ADR”) proceedings was a technique long-developing in many major countries. Despite the earlier presence of the Arbitration Act in United States law, the subject of use of arbitration in IPR situations, especially regarding U.S. patents, remained an open and contested issue, until the original addition of 35 U.S.C. § 294 to the U.S. Patent Act in 1982. U.S. law is now resolved in the availability of IPR arbitration as an ADR tool, either through a “pre-problem” contract, such as a license, or as a “post-problem” mechanism elected and/or established by …

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Is International Arbitration Becoming Too American?, George M. Von Mehrem, Alana C. Jochum Jan 2011

Is International Arbitration Becoming Too American?, George M. Von Mehrem, Alana C. Jochum

Global Business Law Review

This article will discuss the emerging trend of Americanization of international arbitration. As American companies and law firms become more involved in international arbitration, the process has developed to include some of the procedural techniques common to the American courtroom. But other aspects of American litigation are not part of the process. Has this made international arbitration a more effective means of resolving disputes? What should American companies and their lawyers know about the process in order to participate successfully?

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Freedom And Governance In U.S. Arbitration Law, Thomas E. Carbonneau Jan 2011

Freedom And Governance In U.S. Arbitration Law, Thomas E. Carbonneau

Global Business Law Review

Professor Carbonneau will discuss the possible impact of recent United States Supreme Court decisions on international arbitration. The opinions he will refer to could indicate a reversal of the Court’s position on arbitration that would undermine arbitration’s prominence as a means of resolving international commercial disputes. He will then discuss the negative effects international commerce could experience as a consequence.

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Jurisdiction Issues In International Arbitration, Mitchell L. Lathrop Jan 2011

Jurisdiction Issues In International Arbitration, Mitchell L. Lathrop

Global Business Law Review

Arbitration, and particularly international arbitration, involves jurisdictional issues beyond those normally encountered in traditional judicial proceedings. This article will describe prominent jurisdictional issues in international arbitration based on recent pronouncements of judicial and arbitral authorities. From effecting notice of the arbitration proceedings to the improper composition of the arbitral authority, this article will discuss jurisdictional issues that can arise at any time during an arbitration proceeding, and how they can affect the enforcement of an award.

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Piercing The Corporate Veil In International Arbitration, Yaraslau Kryvoi Ph.D. Jan 2011

Piercing The Corporate Veil In International Arbitration, Yaraslau Kryvoi Ph.D.

Global Business Law Review

This article examines the application of the piercing the corporate veil concept in international arbitration. Interpretation of this concept is inconsistent even within one domestic legal system, and it is even less predictable in international arbitration when several legal systems come into play. Piercing the corporate veil may help to give a concrete practical meaning to the purpose of an arbitration agreement or a bilateral investment treaty. However, there are downsides of such piercing because it negates many of the benefits which the corporate form offers. Domestic courts are likely not to recognize and enforce an arbitration award piercing the …

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How Developing Countries Can Adapt Current Bilateral Investment Treaties To Provide Benefits To Their Domestic Economies, Joshua Boone Jan 2011

How Developing Countries Can Adapt Current Bilateral Investment Treaties To Provide Benefits To Their Domestic Economies, Joshua Boone

Global Business Law Review

Bilateral investment treaties (hereinafter "BIT") have been created with the goal of promoting economic prosperity through the facilitation of international investment flows. The idea was to facilitate these investment flows by the opening up of secure channels for foreign direct investment (hereinafter "FDI"), stabilizing the investment climate, granting protective investment guarantees, and providing neutral dispute mechanisms for "injured" investors. Since their inception in 1959, BITs have experienced a "massive and sudden proliferation . . . which has been . . . a 'remarkable' event in international law[,]" and as of the end of 2008, there were over 2,600 BITs in …

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The Surprising Benefits To Developing Countries Of Linking International Trade And Intellectual Property, Rachel Brewster Jan 2011

The Surprising Benefits To Developing Countries Of Linking International Trade And Intellectual Property, Rachel Brewster

Faculty Scholarship

The World Trade Organization's Trade Related Intellectual Property (TRIPS) Agreement is controversial, requiring WTO members to establish a host of domestic institutions to support intellectual property rights, including substantive laws creating rights and a host of enforcement procedures. Trade scholars and development advocates frequently criticize the agreement as economically harmful to developing countries. This Article does not argue that the TRIPS Agreement is beneficial for developing states, but highlights how the agreement has produced some surprising benefits over the last decade and a half. First, the TRIPS Agreement's requirement that developing states make the domestic enforcement of intellectual property rules …

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The Remedy Gap: Institutional Design, Retaliation, And Trade Law Enforcement, Rachel Brewster Jan 2011

The Remedy Gap: Institutional Design, Retaliation, And Trade Law Enforcement, Rachel Brewster

Faculty Scholarship

One of the major innovations of the World Trade Organization’s (“WTO”) Dispute Settlement Understanding (“DSU”) is the regulation of sanctions in response to violations of trade law. The DSU requires governments to receive multilateral approval before suspending trade concessions and limits the extent of retaliation to prospective damages. In addition, the DSU permits governments to impose only conditional sanctions: sanctions for violations that continue after the dispute resolution process is complete. This enforcement regime creates a remedy gap: governments cannot respond, even to obvious breaches, until the end of the dispute resolution process (and then only to the extent of …

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International Arbitration Of Patent Disputes, 10 J. Marshall Rev. Intell. Prop. L. 384 (2011), Wei-Hua Wu Jan 2011

International Arbitration Of Patent Disputes, 10 J. Marshall Rev. Intell. Prop. L. 384 (2011), Wei-Hua Wu

UIC Review of Intellectual Property Law

This paper discusses the concept of using international arbitration as a method of resolving patent disputes. First, this paper examines the arbitrability of patent validity disputes from a public policy viewpoint. The question is whether, or to what extent, the subject matter of patent validity disputes may be settled by international commercial arbitration. Second, this paper provides suggestions on strategies for organizational decision-makers to consider whether it is proper to choose arbitration as a more favorable tool when confronted with a patent dispute. Finally, this paper discusses how to choose the seat of arbitral institution and the applicable law.

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"Competence-Competence And Separability-American Style", Published As Chapter 8 In International Arbitration And International Commercial Law: Synergy, Convergence And Evolution, Jack M. Graves, Yelena Davydan Jan 2011

"Competence-Competence And Separability-American Style", Published As Chapter 8 In International Arbitration And International Commercial Law: Synergy, Convergence And Evolution, Jack M. Graves, Yelena Davydan

Scholarly Works

No abstract provided.

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East Meets West: Introducing Sharia Into The Rules Governing International Arbitrations At The Bcdr-Aaa, Elana Levi-Tawil Jan 2011

East Meets West: Introducing Sharia Into The Rules Governing International Arbitrations At The Bcdr-Aaa, Elana Levi-Tawil

Cardozo Journal of Conflict Resolution

As the size and complexity of international commercial transactions grow, parties to international commercial transactions are increasingly utilizing Alternative Dispute Resolution ("ADR") methods, specifically international commercial arbitration, to resolve the disputes that arise. However, since international commercial players first began to use international commercial arbitration to resolve these disputes, transnational recognition and enforcement of foreign arbitral awards has been a major issue. Since 1958, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"), an agreement executed by the United Nation's General Assembly, has vastly expanded the recognition and enforcement of foreign arbitral …

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What Role For “Women,” “Men,” And Transpeople/Intersex People In Gender Equality: A Commentary, Edward D. Stein Jan 2011

What Role For “Women,” “Men,” And Transpeople/Intersex People In Gender Equality: A Commentary, Edward D. Stein

Articles

This has been a very rich opening panel to what promises to be a terrific conference. The panelists' comments go in such varied directions that it is a challenge to be both a commentator and summarizer, especially when I have just a few minutes to speak. What I plan to do is say a little bit to draw together some of the themes that the panelists have been talking about that are connected to a couple of topics I have been working on while at the same time trying to look forward to some of the things I hope we …

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