Dispute Resolution and Arbitration Commons^™

Predictability Of Arbitrators' Reliance On External Authority?, Ariana R. Levinson, Erin O'Hara O'Connor, Paige Marta Skiba

American University Law Review

No abstract provided.

Henry Schein V. Archver & White: A Lesson In The Importance Of Carefully Drafting An Arbitration Clause, Charles B. Rosenberg

American University Business Law Review

No abstract provided.

Panel Iii: New Parties In Arbitration, American University Business Law Review

American University Business Law Review

No abstract provided.

International Arbitration And Attorney-Client Privilege — A Conflict Of Laws Approach, Susan Franck

Scholarly Articles in Law Reviews & Journals

Privilege determinations in international arbitration are currently the equivalent of the “wild west,” with minimal predictability and massive pockets of tribunal discretion. Yet protecting privilege in international arbitration — when the same document or communications with lawyers that is protected by United States law may receive no protection under another law — is fundamental to safeguarding attorney-client relationships within a global environment, incentivizing procedural integrity of dispute resolution, and ensuring that justice is done. As it is not clear what law applies to privilege and client confidentiality (let alone how the law is determine), this Essay begins to bridge the …

The Investor-State Dispute Settlement System Amidst Crisis, Collapse, And Reform, Henrique Sachetim, Rafael CodeçO

Arbitration Brief

No abstract provided.

When Peer Pressure Is Not Enough: Mandatory Disclosure And Third-Party Funding, Sarah Gilcrest

Arbitration Brief

No abstract provided.

Letter From The Editor

Arbitration Brief

No abstract provided.

Conference Report: Handling Allegations Of Corruption In Arbitration And Judicial Dispute Settlement, Adam Briscoe, Björn Arp

Arbitration Brief

No abstract provided.

Arbitrators' Authority: Scope And Limitations, Horacio A. Grigera Naón

Arbitration Brief

No abstract provided.

International Arbitration - Between Myth And Reality: The 9th John E.C. Brierly Memorial Lecture, Susan Franck

Scholarly Articles in Law Reviews & Journals

The first woman to deliver the John E.C. Brierly Memorial Lecture in November 2016, Susan Franck explores common but flawed accounts of international arbitration based on anecdotes and myths while encouraging the audience to pay more attention to scientific facts. While acknowledging the challenges of living in a “post-factual” society, she argues that international arbitration, whether commercial or investment-based, is caught within a larger geo-political maelstrom which includes a backlash against globalization, the popularization of populism, and a turn toward nationalism. Rather than permitting decisions to be affected by an emotive torrent of intuitive forces that facilitate decisions based upon …

Corruption In International Commercial Arbitration: Arbitrability, Admissibility & Adjudication, Deeksha Malik, Geetanjali Kamat

Arbitration Brief

No abstract provided.

Can The Language Of The Trans-Pacific Partnership Still Contribute To The International Investment System? An Analysis Of Tpp's Language Regarding States' Powers To Regulate, Yurica Ramos Montes

Arbitration Brief

No abstract provided.

Inside The Arbitrator's Mind, Susan Franck

Scholarly Articles in Law Reviews & Journals

Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …

The Investment-Related Aspects Of Intellectual Property Rights, Peter K. Yu

American University Law Review

No abstract provided.

The New New Courts, Orna Rabinovich-Einy, Ethan Katsh

American University Law Review

In this Article we describe the phenomenon of online courts, which is fast gaining momentum, and analyze these "new new courts" from an access to justice perspective. We distinguish between two turning points in terms of access to justice and courts: the rise of alternative dispute resolution (ADR) (producing what we refer to as the "new courts") and the spread of online dispute resolution (ODR) (giving rise to what we refer to as the "new new courts"). While both developments seem to be motivated by similar rationales and a desire to increase access to justice, the implications of adopting ADR …

Issues Concerning Enforcement And Dispute Resolution, Sean Flynn

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Food Stamps, Unjust Enrichment And Minimum Wage, Candace Kovacic-Fleischer

Scholarly Articles in Law Reviews & Journals

A number of large retail chains with monopsony power, such as Walmart, pay their low level employees so little that these employees are eligible for food stamps and other governmental benefits. In addition to paying low wages, these chains often have hourly restrictions so that their employees are not eligible for overtime pay. At times the chains violate the wage and hour provisions of the Fair Labor Standards Act (FLSA) by making hourly employees work “off the clock,” a practice known as wage theft.

One of the reasons these low wage retailers can pay so little is because their employees …

Predicting Outcomes In Investment Treaty Arbitration, Susan Franck

Scholarly Articles in Law Reviews & Journals

Crafting appropriate dispute settlement processes is challenging for any conflict-management system, particularly for politically sensitive international economic law disputes. As the United States negotiates investment treaties with Asian and European countries, the terms of dispute settlement have become contentious. There is a vigorous debate about whether investment treaty arbitration (ITA) is an appropriate dispute settlement mechanism. While some sing the praises of ITA, others offer a spirited critique. Some critics claim that ITA is biased against states, while others suggest ITA is predictable but unfair due to factors like arbitrator identity or venue. Using data from 159 final cases derived …

International Arbitration: Demographics, Precision And Justice, Susan Franck, James Freda, Kellen Lavin, Tobias A. Lehmann, Anne Van Aaken

Contributions to Books

ICCA Congress Series No. 18 comprises the proceedings of the twenty-second Congress of the International Council for Commercial Arbitration (ICCA), held in Miami in 2014. The articles by leading arbitration practitioners and scholars from around the world address the challenges, both perceived and real, to the legitimacy of international arbitration.

The volume focusses on the twin pillars of legitimacy: justice, in procedure and outcome, and precision at every phase of the proceedings. Contributions on justice explore issues related to diversity, fairness and whether arbitral institutions can do more to foster legitimacy – based on the responses of nine international arbitral …

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.

Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Diversity Challenge: Exploring The 'Invisible College' Of International Arbitration, Susan Franck

Scholarly Articles in Law Reviews & Journals

As diversity can affect the perceived legitimacy of a state’s dispute resolution system and the quality of judicial decisions, diversity levels in the national bench and bar have been an area of transnational concern. By contrast, little is known about diversity of adjudicators and counsel in international arbitration. With a lack of accurate, complete, and publicly available data about international arbitrators and practitioners, speculation about membership in the “invisible college” of international arbitration abounds. Using data from a survey of attendees at the prestigious and elite biennial Congress of the International Council for Commercial Arbitration permitted one glimpse into the …

Conflating Politics And Development? Examining Investment Treaty Arbitration Outcomes, Susan Franck

Scholarly Articles in Law Reviews & Journals

International dispute settlement is an area of ongoing evaluation and tension within the international political economy. As states continue their negotiations for the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), the efficacy of international arbitration as a method of dispute settlement remains controversial. Whereas some sing its praises as a method of protecting private property interests against improper government interference, others decry investment treaty arbitration (ITA) as biased against states. The literature has thus far not disentangled how politics and development contribute to investment dispute outcomes. In an effort to control for the effect of internal …

Using Investor-State Mediation Rules To Promote Conflict Management, Susan Franck

Scholarly Articles in Law Reviews & Journals

International investment treaties offer critical infrastructure for globalization and are one of the backbones of larger dialogues related to the international political economy. As the treaties grant substantive and procedural rights, the capacity of international investors to directly access dispute resolution involving States has been a story of both success and discontent. Investment treaty arbitration, in particular, has been a source of polarization; and stakeholders are actively seeking alternatives to formalized adjudication before ad hoc tribunals. Mediation, in addition to other forms of alternative dispute resolution and conflict management, has become an increasingly vital part of the debate about the …

The Ohio State University Dispute Resolution In Special Education Symposium Panel, Robert Dinerstein

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Role Of The Ombuds In A Knowledge-Intensive Corporation: A Partner For Conflict Prevention And Mitigation, David P. Clark

Working Papers

No abstract provided.

The Asbca's Path To The Mega Adr In Computer Sciences Corporation, Paul Williams, Reba Ann Page

Scholarly Articles in Law Reviews & Journals

No abstract provided.

67. International Investment Arbitration: Winning, Losing And Why, Susan Franck, Karl P. Sauvant, Jennifer Reimer, Todd Allee, Ilan Alon, Alice H. Amsden, Tadahiro Asami, Reuven S. Avi-Yonah, Paul Barbour, Christian Bellak, Axel Berger, Sjoerd Beugelsdijk, Subrata Bhattacharjee, Harry G. Broadman, Elizabeth Broomfield, Gert Bruche, Matthias Busse, John A. Cantwell, Aleh Cherp, Lorenzo Cotula, Nandita Dasgupta, Kenneth Davies, Alexandre De Gramont, Armand Claude De Mestral, Kabir Duggal, Persephone Economou, John Evans, David N. Fagan, Mark Feldman, Hermann Ferré, Daniel M. Firger, Veljko Fotak, Kevin P. Gallagher, Nilgun Gokgur, Kathryn Gordon, Jose Guimon, Thilo Hanemann, Torfinn Harding, Jean-François Hennart, Seev Hirsch, Wing (Xiaoying) Huo, Beata Smarzynska Javorcik, Nathan M. Jensen, Lise Johnson, Thomas Jost, George Kahale Iii, Kalman Kalotay, Laza Kekic, John M. Kline, Charles Kovacs, Jürgen Kurtz, Jo En Low, Miguel PéRez LudeñA, Edmund J. Malesky, Geraldine Mcallister, William L. Megginson, Sophie Meunier, Michael Mortimore, Joel Moser, Michael D. Nolan, Peter Nunnenkamp, Terutomo Ozawa, Clint Peinhardt, Nicolás M. Perrone, Luke Eric Peterson, Mark Plotkin, Joachim Pohl, Lauge N. Skovgaard Poulsen, Carlos Razo, Daniel Rosen, Martin Roy, Giorgio Sacerdoti, Premila Nazareth Satyanand, Manfred Schekulin, Stephan W. Schill, Francisco Colman Sercovich, Arjen Hl Slangen, Roger Smeets, Hans Smit, M. Sornarajah, Frederic G. Sourgens, Jonathan Strauss, Kenneth P. Thomas, Margo Thomas, Perrine Toledano, Julien Topal, Anne Van Aaken, Gus Van Harten, Daniel Villar, Sandy Walker, Mira Wilkins, Jason W. Yackee, Chen Zhao

Contributions to Books

This second edition of this publication provides an overview of important contemporary issues relating to foreign direct investment (FDI) and multinational enterprises for all those who are interested in this subject, but are not always in a position to follow diverse perspectives and what is being written in the various corners of this field. The contributions are grouped under the following headings: attracting FDI and its impact; the rise of emerging market investors; national policies; sustainable international investment; and international investment treaties and arbitration. The volume brings together all Perspectives published since the inception of this series until 2012.

Book Review: The Public International Law Regime Governing International Investment, By Jose E. Alvarez, The Hague: Hague Academy Of International Law, Susan Franck

Book Reviews

Jose Alverez's recent book, The Public International Law Regime Governing International Investment, places international investment law firmly within the rubric of public international law. Historically, international investment law might have been classified as pure private international law given the private commercial actors and investment activities involved. Alvarez posits that a dichotomous public versus private law paradigm does not work in the context of international investment and makes the implicit explicit by considering investment law’s unique, arguably sui generis, hybrid essence that crosses the public and private international law divides. This book review explores Alvarez's primary thesis and his extended exposition …

Managing Expectations: Beyond Formal Adjudication, Susan Franck

Scholarly Articles in Law Reviews & Journals

The international investment system has depended heavily on international arbitration to provide guidance and clarification on the standards contained in international investment agreements. In order to assess the system realistically, this commentary discusses unpacking stakeholder expectations by recognizing where expectations may have been overly optimistic and thinking systematically about the mechanisms through which to capture and manage regulatory discretion. This article evaluates ideas expressed by Anne van Aaken and Bart Legum, which consider different ways to achieve regulatory and commercial balance, and offers a lens for thinking systematically about managing stakeholder expectations in the international investment system. A critical issue …