Dispute Resolution and Arbitration Commons^™

Dokdo/Takeshima And Maritime Delimitation Between The Republic Of Korea And Japan: A Comment On Icj Dispute Resolution, Katherine Angell

American University International Law Review

The Republic of Korea (Korea) should agree to submit the issue of sovereignty over Dokdo/Takeshima and the issue of maritime delimitation in the East Sea/Sea of Japan to the International Court of Justice (ICJ) because the ICJ is likely to decide that Dokdo/Takeshima is Korean territory and the tensions in the East Sea/Sea of Japan can be resolved to allow further cooperation between the two nations. The ICJ is the primary avenue for peacefully resolving territorial and maritime delimitation disputes between nations, and the ICJ has developed a substantial body of case law analyzing these issues. The ICJ considers various …

Renewed Injustice: Domestic Investors And The Energy Transition, Fernando Dias Simões

American University International Law Review

The Spanish renewable energy “saga” offers a graphic account of the structural biases of international investment law. Like other countries, Spain introduced economic incentives in support of photovoltaic energy, attracting sizable national and foreign investment. When this regime proved too burdensome on public finances, the government changed it drastically. Around 60,000 Spanish investors were affected. When these investors sought justice, they faced a different fate from their foreign counterparts. While foreign investors had the option to submit their claims to international arbitral tribunals, domestic investors were limited to national courts.

The outcome was a textbook example of unequal treatment of …

Procedural Good Faith In Investment Arbitration—What Is It And What Could It Be?, Meg Kinnear

American University Business Law Review

When I selected the topic of procedural good faith for this lecture, I did not expect it to be as unwieldy as it proved to be. After all, good faith is a fundamental concept for every law student, and it anchors our approach to legal analysis and “thinking like a lawyer.” As counsel, our core belief is that proceedings must be conducted in good faith, and we each have a professional duty to act in good faith in arbitration.

Nonetheless, I am certain that each of you has witnessed conduct during an arbitration—by the opposite party, of course—that struck you …

Dokdo/Takeshima And Maritime Delimitation Between The Republic Of Korea And Japan: A Comment On Icj Dispute Resolution, Katherine Angell

Celebrating WCL Student Authors

The Republic of Korea (Korea) should agree to submit the issue of sovereignty over Dokdo/Takeshima and the issue of maritime delimitation in the East Sea/Sea of Japan to the International Court of Justice (ICJ) because the ICJ is likely to decide that Dokdo/Takeshima is Korean territory and the tensions in the East Sea/Sea of Japan can be resolved to allow further cooperation between the two nations. The ICJ is the primary avenue for peacefully resolving territorial and maritime delimitation disputes between nations, and the ICJ has developed a substantial body of case law analyzing these issues. The ICJ considers various …

(D)Evolution Of International Commercial Arbitration In Mexico, Edwin N. Á. Román

Arbitration Brief

The 1990s were a time of vibrant international rulemaking in the field of international economic law, during which Mexico transformed from a closed to an open economy. In 1993, Mexico adopted the 1985 UNICITRAL Model Law on International Commercial Arbitration. In 2011, Mexico amended its commercial code by introducing a specific proceeding to enforce and set aside arbitration awards titled “Juicio Especial sobre Transacciones Comerciales y Arbitraje.” Alongside these amendments, Mexico became an internationally relevant jurisdiction for the recognition and enforcement of foreign arbitral awards. This article analyzes the evolution of the Mexican Supreme Court of Justice’s jurisprudence concerning international …

Third-Party Funding In Treaty-Based Arbitration: Towards A More Transparent And Responsible System?, Margie-Lys Jaime R.

Arbitration Brief

Third-Party Funding (“TPF”) has become the “new kid on the block” of long-established stakeholders in international arbitration. However, despite the increasing use of TPF, few countries have undertaken the task of regulating the intervention of funders. Even in countries where the practice of TPF is regulated, it is generally in codes of conduct or non-binding instruments.

Forced Arbitration In Tesla’S Consumer Contracts, Abigail Hug

Arbitration Brief

The Supreme Court has supported the FAA’s preference for enforcing arbitration clauses and has extended it to forced arbitration provisions. In DirecTV v. Imburgia, the Supreme Court upheld a mandatory arbitration clause in a consumer service agreement, which additionally prohibited class arbitration. The Court reasoned that the FAA clearly states that written provisions in contracts that mandate arbitration are enforceable as all other contracts are enforceable. Companies throughout the United States use forced arbitration for employment and consumer contracts, including those for car leases. Forced arbitration clauses in consumer contracts ensure that customers settle their disputes with a company through …

A Uniform, National Body Of Law To Govern The Enforcement Of Arbitration Agreements, Imre S. Szalai

American University Business Law Review

The heart of the Federal Arbitration Act (FAA) is section 2, which contains a federal mandate that arbitration agreements are valid, irrevocable, and enforceable; the FAA's remaining provisions help carry out this mandate.

The Climate-Arbitration Nexus: How Legitimate Expectations Shape Investor Claims In A Decarbonizing World, M. Uzeyir Karabiyik

American University International Law Review

The global push for climate change mitigation, particularly through renewable energy promotion and fossil fuel phase-out, has sparked a surge in investor-state arbitrations. At the heart of these arbitrations lies the concept of “legitimate expectations,” which is considered by arbitral tribunals as a cornerstone of the fair and equitable treatment (FET) standard. This Article conducts a comprehensive analysis of diverse approaches adopted by arbitral tribunals in interpreting legitimate expectations in the context of climate action. It then delves into specific interpretations of this concept within two categories: disputes related to states’ renewable energy promotion policies and those that stem from …

Arbitrator Selection Default Rules, Irene M. Ten Cate

American University Law Review

This Article makes the case for changing the default settings for the selection of arbitrators in international commercial arbitration. For three-member tribunals, the rules of most international arbitration institutions provide that each party picks an arbitrator. The institution or the co-arbitrators then select the tribunal’s president. This prescription, which parties may set aside by agreement, codifies longstanding practices and corresponds to the strong preference of international arbitration insiders. Nonetheless, I argue that arbitration rules should default toward institutional selection of all arbitrators.

Switching the default nudges parties that can’t take full advantage of the arbitrator selection game—due to inexperience, lack …

Introductory Remarks, Dana Welch

American University Business Law Review

The year 1925 proved to be eventful for the United States and for the world. The Scopes Monkey Trial placed evolution in the spotlight. The New Yorker published its first issue. The "Grand Ole Opry´ premiered on the radio as the WSM Barn Dance. And fascism threatened Europe as Benito Mussolini dissolved the Italian Parliament and declared himself "Il Duce," the dictator of Italy, while Adolf Hitler published the first volume of Mein Kampf, written from prison. On a lighter note, Washington, D.C., saw the first National Spelling Bee, won by Frank Neuhauser, an eleven-year-old from Kentucky who correctly spelled …

Bringing Section 7 Into The Next Century, Amy J. Schmitz, David M. Brodsky

American University Business Law Review

In 1925, Congress passed a historic piece of legislation, the Federal Arbitration Act (FAA), that attempted to change the American judiciary's hostility towards enforcing arbitration agreements and awards. This hostility was rooted in English common law and migrated to the American civil justice system. But in 1925, Congress gave life to the broad use of executory agreements to enforce compliance with contracts through arbitration.

The Right To Arbitrate(?): Integrating Consumer Protection Into Judicial Review Of The Mccarran-Ferguson Act And The New York Convention, Rachel Bamberger

American University Business Law Review

International commercial arbitration has grown increasingly popular as an alternative method of dispute resolution. This Comment explores the struggle courts face when they must determine whether to apply the New York Convention, an international treaty that recognizes and compels arbitration agreements, or a federal statute known as the McCarran-Ferguson Act, which delegates authority to the states to regulate insurance. Conflict arises when foreign insurers seek to compel arbitration under the New York Convention in states with antiarbitration insurance laws, and courts must choose between upholding domestic state laws or honoring the Treaty.

This Comment examines the method of analysis used …

Collaborative Dispute Resolution: Five Essential Questions, Scott Adams, Aparna Mukerjee

Perspectives

This essay identifies five key questions regarding the dispute resolution process and explores the answers to these. The five questions are:

1. How Should Parties Decide Whether to Participate in Dispute Resolution?
2. What are the Roles of Advocates and Advisors?
3. Does Dispute Resolution Provide Accountability and Remedy?
4. How Can Dispute Resolution Foster Institutional Learning for dfis?
5. Why Is it Important for Dispute Resolution to be Independent rather Than Embedded in DFI Management?

What We Can Learn From The Notorious P&Id V. Nigeria, Emily Granja

Arbitration Brief

On October 23, 2023, England’s High Court of Justice ruled in favor of the Federal Republic of Nigeria in Nigeria v. Process & Industrial Developments Ltd. (P&ID). Reviewing the case, the High Court vacated P&ID’s $10 billion arbitral award after finding significant evidence of fraud and bribery. While the High Court’s decision marked a victory for Nigeria, it also shook the international arbitration system. This case exposed some of international arbitration’s flaws and generated new concerns regarding the confidentiality inherent in the arbitration process.

Repeal The Federal Arbitration Act's "Arising Out Of" Requirement, Stephen J. Ware

American University Business Law Review

Suppose Pfizer and CVS agree to arbitrate not only any disputes that might arise out of their contract containing an arbitration agreement but also any disputes that might arise out of any of the many earlier contracts between these two large corporations. Or Apple and Samsung agree to arbitrate any patent infringement claims either has against the other for the next five years. Or FedEx and UPS agree to arbitrate any tort claims either has against the other due to any collision of their vehicles in the next ten years. Or members of the Walton (Walmart) family agree to arbitrate …

Section 4 -- Jury, Trial: A Misnomer In The Faa, Tracey B. Frisch

American University Business Law Review

The purpose of the Federal Arbitration Act (FAA), according to the Supreme Court, was not merely to reverse judicial hostility towards arbitration by placing agreements to arbitrate on the same footing as other contracts but to actively promote the use of arbitration on a national scale. It is not surprising then that most provisions of the FAA envision limited court intervention into the arbitration process.

The Problem Of Unreasoned Reasoned Awards And The Judicial Failure To Remedy It: Statutory And Rule Solutions, John B. Mcarthur, Mark Travis

American University Business Law Review

American arbitrators have long been choosing between two common forms of awards: "reasoned awards" and "standard awards" with no reasons enumerated. Yet neither arbitration rules nor statutes define "reasoned award." This lack of guidance has gotten arbitration in trouble and threatens its ability to satisfy users' needs.

Adding A Data Disclosure Requirement To The Faa: An Overdue Reform, Richard Frankel

American University Business Law Review

Artificial intelligence (AI) and predictive analytics are transforming almost every sector of society. The field of dispute resolution is no exception to this trend. Lawyers in emerging disputes are hungry for data about arbitrators and judges, prior decisions, similar disputes, and anything else they can get their hands on.

Towards The Faa's Next Century: Clarifying Disclosure Requirements In Arbitration, Andrea K. Schneider, Brian Farkas

American University Business Law Review

In the summer of 2024, all eyes were on Paris. Thousands of athletes from over 200 countries competed in over 300 sports. The Olympics is nationalism at its healthiest: cheering for one's own nation, while recognizing the fundamentally transnational human values of pluralism, diversity, and aspiration.

Facilitating Trust Arbitration By Amending The Federal Arbitration Act, S. I. Strong

American University Business Law Review

Over the last few years, a new dispute resolution procedure has burst onto the domestic and international stage: trust arbitration, which allows an arbitration provision located in a trust to trigger arbitration of "internal" trust disputes arising either between trust beneficiaries or between beneficiaries and the trustee.

Too Much Domestic Law In International Arbitration: The Case Of Arbitral Res Judicata, Luca G. Radicati Di Brozolo

American University Business Law Review

This paper is the text of the 19th Annual Lecture on International Arbitration given by the author at the Center on International Commercial Arbitration of the American University Washington College of Law in Washington, D.C. on October 19, 2023.

The Chicken Or The Egg: The Proper Order Of Analysis When Determining The Enforceability Of A Delegation Clause And The Broader Arbitration Agreement In Consumer Contexts, Parker Reynolds

American University Business Law Review

First, this Comment will provide pertinent background on the Federal Arbitration Act (“FAA”) to better understand the intent of the legislation and how it has historically been applied. Second, this Comment will seek to not only explain the underlying cause of the circuit split but also offer a framework for the proper order of analysis in situations with both a delegation claim and an unenforceability claim. Specifically, this Comment will argue that although a delegation clause’s enforceability must be analyzed separately from the entire agreement’s enforceability, the delegation clause must be examined within the context of the arbitration agreement to …

Reforming World Bank Dispute Resolution: Icsid In Context, Susan Franck

Scholarly Articles in Law Reviews & Journals

During a tumultuous moment in history with shifts in power and politics, international dispute settlement stands at a crossroads. In theory, international dispute settlement should not institutionalize abuses of power, rely upon a monolithic one-size-fits-all model, or be a waste of resources, which will inevitably generate stakeholder dissatisfaction. Rather, dispute resolution should reflect both a commitment to the rule of law and equal treatment that sustains nuanced, fair, and just procedures most likely to provide results of substantive quality. Against this backdrop and with the major reforms concluded in July 2022, this article explores the reality of dispute resolution at …

State Attribution: Whether State Ownership Of A Private Entity Is Important In Determining If The Actions Of That Entity Are Attributable To The State, Alejandro Solano Meardi

Arbitration Brief

No abstract provided.

Sovereign Wealth Funds And Investor-State Dispute Settlement: Examining Questions Of Icsid’S Jurisdiction And The Impact Of Investment-Treaty Arbitration, Muhammad Ussama

Arbitration Brief

The rate of foreign direct investment made by sovereign wealth funds has increased significantly during the past decade. Various concerns raised by host states— especially those located in the developed world—regarding the purposes and objectives of foreign investments made by these funds have led these states to take measures to protect themselves. Countries such as Canada, Germany, and the United States have issued new laws to address these concerns. Due to the broad discretion and flexibility that these laws grant to the governments of the host states, allegations of mistreatment by investors from the Global South, including sovereign wealth funds, …

Importance Of The Law Applicable To The Arbitration Agreement In International Commercial Arbitration, Marlon M. Meza-Salas

Arbitration Brief

This article analyzes the law applicable to the arbitration agreement in international commercial arbitration and some of the issues that could arise when the parties do not choose any particular law to govern their arbitration agreement. Parties frequently determine the substantive law that will govern the merit of the dispute and the rules applicable to the arbitration procedure. However, parties generally remain silent about the law that will govern the arbitration agreement itself, which could lead to unexpected or undesired effects before, during, and after arbitration, most of which could be avoided by simply selecting the law applicable to the …

Are Pre-Dispute Agreements To Arbitration Online Enforceable?, Caleb Gerbitz

Arbitration Brief

Arbitration is a favored adjudicatory mechanism because it is efficient, effective, and informal compared to judicial litigation. Scholar Thomas Carbonneau has noted that arbitration is “America’s optimal trial procedure.” The ubiquity of pre-dispute agreements to arbitrate in consumer contracts makes arbitration the dominant method to resolve such disputes. Yet, despite its hallmarks of accessibility and informality, arbitration’s reliance on face-to- face proceedings limits its benefits. Online dispute resolution (ODR) has grown in popularity among e-commerce retailers over the last two decades—and more recently within court systems.5 However, ODR’s rise has not meaningfully affected how pre-dispute agreements to arbitrate are drafted …

Letter From The Editor, Elena Z. Ritchie

Arbitration Brief

No abstract provided.

Panel I: Negotiating Arbitration Clauses, American University Business Law Review

American University Business Law Review

No abstract provided.