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Articles 31 - 52 of 52
Full-Text Articles in Dispute Resolution and Arbitration
The Death Of The American Trial, Robert P. Burns
The Death Of The American Trial, Robert P. Burns
Faculty Working Papers
This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.
Rethinking Bivens: Legitimacy And Constitutional Adjudication, James E. Pfander, David Baltmanis
Rethinking Bivens: Legitimacy And Constitutional Adjudication, James E. Pfander, David Baltmanis
Faculty Working Papers
The Supreme Court's decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics provides an uncertain framework for the enforcement of constitutional rights against the federal government. Rather than recognizing a federal common law right of action for use in every case, the Court views itself as devising actions on a case-by-case basis in light of a range of factors. Critics on all sides question the Court's approach, doubting either its power to fashion federal common law or the tendency of its case-by-case analysis to create gaps in constitutional enforcement. Particularly when compared with actions under …
Consumer Harm Acts? An Economic Analysis Of Private Actions Under State Consumer Protection Acts, Henry N. Butler, Jason S. Johnston
Consumer Harm Acts? An Economic Analysis Of Private Actions Under State Consumer Protection Acts, Henry N. Butler, Jason S. Johnston
Faculty Working Papers
State Consumer Protection Acts (CPAs) were adopted in the 1960s and 1970s to protect consumers from unfair and deceptive practices that would not be redressed but for the existence of the acts. In this sense, CPAs were designed to fill existing gaps in market, legal and regulatory protections of consumers. CPAs were designed to solve two simple economic problems: 1) individual consumers often do not have the incentive or means to pursue individual claims against mass marketers who engage in unfair and deceptive practices; and, 2) because of the difficulty of establishing elements of either common law fraud or breach …
Reliance Remedies At The International Center For The Settlement Of Investment Disputes, David Collins
Reliance Remedies At The International Center For The Settlement Of Investment Disputes, David Collins
Northwestern Journal of International Law & Business
This article will examine the types of situations and expenses which ICSID tribunals have compensated by awarding damages for actual losses suffered and will attempt to illustrate how this choice is generally economically efficient. It will begin by outlining standards of damage remedies that are commonly employed in international law and will conclude with some criticisms of the reliance measure in the investment context. As this article is forum-focused, it will not examine reliance-based remedies in international investment law under other regimes, such as United Nations Commission on International Trade Law (UNCITRAL) arbitrations or under the Iran-U.S. Claims Tribunal, in …
Dancing With The Dragon: What U.S. Parties Should Know About Chinese Law When Drafting A Contractual Dispute Resolution Clause, Marcus Wang
Northwestern Journal of International Law & Business
This paper is intended as a guide for U.S. parties doing business with Chinese parties who wish to inoculate themselves to the greatest extent possible against foreseeable difficulties arising from disputes. One such protective measure is the inclusion of a dispute resolution clause in the contract between the parties. Dispute resolution clauses, for the purposes of this paper, refer to clauses in the contract between the parties that specify the location and means of dispute resolution. That location may be a forum in China or outside of China, and the means may be either litigation or arbitration. U.S. parties must …
Litigation And The Optimal Combination Of Vague And Precise Clauses In Contracts, Alvaro E. Bustos
Litigation And The Optimal Combination Of Vague And Precise Clauses In Contracts, Alvaro E. Bustos
Faculty Working Papers
In this paper we determine the optimal combination of precise and vague clauses written in contracts when the parties face writing and enforcement costs, the second ones in the form of litigation. We show that the parties may prefer to write vague instead of precise clauses not only because they are cheaper to write but also because they are cheaper to enforce. We extend Battigalli and Maggi (2002) to model the decision of a principal who chooses clauses to describe the actions that an agent has to perform. As both players observe nature imperfectly they may call for a court …
Forum Shopping And The Infrastructure Of Federalism., James E. Pfander
Forum Shopping And The Infrastructure Of Federalism., James E. Pfander
Faculty Working Papers
The recent effort of environmentalists and others to secure progressive social change at the state level enacts a familiar ritual in the history of American federalism. Political actors who have found their initiatives blunted at the national level have often turned to the states. With the ebb and flow of political power between two parties over time, arguments about the relative authority of federal and state governments display far more expediency than principle, far more mutability than predictability. States may be more or less progressive than the national government, depending in good measure on the temper of the times and …
Arbitration Of International Oil, Gas, And Energy Disputes In Latin America, Alexia Brunet, Juan Agustin Lentini
Arbitration Of International Oil, Gas, And Energy Disputes In Latin America, Alexia Brunet, Juan Agustin Lentini
Northwestern Journal of International Law & Business
An increase in global reliance on fossil fuels has prompted greater discussion on energy security. For the United States, interest has focused on ensuring that countries in the Western Hemisphere, which currently supply roughly half of U.S. imports of crude oil and petroleum products, remain stable sources of energy. While concerns have focused on political instability and a rising interest in the hemisphere's energy resources by China and India, the conversation centers on a hemispheric trend toward resource nationalism. Resource nationalism is exemplified by the global trend of placing the world's oil reserves under the control of national oil companies …
Train Our Jurors, Jonathan Koehler
Train Our Jurors, Jonathan Koehler
Faculty Working Papers
Lay jurors are often legally and logically unprepared for trial. In response, it is recommended that jurors receive training in how to make better legal decisions. This chapter suggests that jurors should receive comprehensive training in critical legal doctrines and in how to reason with legal evidence. Jurors who cannot be trained to achieve minimal levels of competence (in the law or in basic reasoning) should be excused from jury service. Suggestions are given as to how policy makers and researchers who are interested in jury reform may wish to proceed.
The Hague Convention On Choice Of Court Agreements: The United States Joins The Judgment Enforcement Band, Matthew H. Adler, Michele Crimaldi Zarychta
The Hague Convention On Choice Of Court Agreements: The United States Joins The Judgment Enforcement Band, Matthew H. Adler, Michele Crimaldi Zarychta
Northwestern Journal of International Law & Business
In 2005, the United States signed a treaty that, if ratified, would be the United States' first-ever international agreement on judgment enforcement. The treaty provides that (a) where two commercial parties elect to resolve disputes between them in a particular forum, and (b) a judgment issues from that forum, then (c) all member states must enforce the judgment. It is a document driven by party autonomy; absent a choice of court agreement (in U.S. parlance, a choice of forum clause), the treaty has no meaning or applicability. The treaty's signing was the end of a rigorous journey. The United States …
Creating A Market For Justice; A Market Incentive Solution To Regulating The Playing Field: Judicial Deference, Judicial Review, Due Process, And Fair Play In Online Consumer Arbitration, Llewellyn Joseph Gibbons
Creating A Market For Justice; A Market Incentive Solution To Regulating The Playing Field: Judicial Deference, Judicial Review, Due Process, And Fair Play In Online Consumer Arbitration, Llewellyn Joseph Gibbons
Northwestern Journal of International Law & Business
Swindlers, purveyors of substandard products or services, and honest traders unable to perform their agreements can access the global market as easily as legitimate and capable businesses. The impersonal nature of e-commerce makes it more difficult for traders to discern a merchant or transaction that will not satisfy their expectations. This article analyzes procedural due process concerns as an element of arbitration in online dispute resolution ("ODR") in business-to-consumer ("B2C") e-commerce. B2C e-commerce will be worth an estimated $250 billion by the end of 2003, but one factor hindering its growth is the lack of effective dispute resolution. For reasons …
International Commercial Arbitration In Cyberspace: Recent Developments, Ljiljana Biukovic
International Commercial Arbitration In Cyberspace: Recent Developments, Ljiljana Biukovic
Northwestern Journal of International Law & Business
This article examines some features of virtual arbitration and argues that the use of new technology and the development of e-commerce raise some interesting questions to international arbitration laws. Part It describes initiatives to develop online dispute resolution. Part III discusses virtual dispute resolution centers, including, how, why, and where they function. More importantly, however, Part III investigates the differences between online and off-line arbitration, where the focus remains on three questions. The first question is a crucial one. It has been debated by scholars and practitioners but still remains unresolved: will arbitration agreements concluded online and arbitration awards rendered …
Knowledge, Legitimacy, Efficiency And The Institutionalization Of Dispute Settlement Procedures At The World Trade Organization And The World Intellectual Property Organization, Michael P. Ryan
Northwestern Journal of International Law & Business
International legal research regarding international economic dispute settlement tends to be a-theoretical. A theoretically-grounded analytic framework is employed in this article which draws from scholarship from political science, sociology, and economics regarding institutions and international governmental organizations. The knowledge-legitimacy-efficiency analytic framework is applied in this article to studies of General Agreement on Tariffs and Trade (GA TT)/World Trade Organization (WTO) dispute settlement in order to relate this relevant scholarship to the economic field under primary study, Internet domain names. GA TT/WTO knowledge regarding international trade law has thickened through multi-lateral trade negotiations and dispute settlement decisions. The WTO's legitimacy is …
Worms, Mice, Cows And Pigs: The Importance Of Animal Patents In Developing Countries, Elisabeth T. Jozwiak
Worms, Mice, Cows And Pigs: The Importance Of Animal Patents In Developing Countries, Elisabeth T. Jozwiak
Northwestern Journal of International Law & Business
Transgenic animals play a large role in several critical industries: the pharmaceutical industry, the agricultural industry, farming, and medical research. As these biotechnology-oriented industries have grown, the United States and other industrialized nations have realized the importance of patent protection for genetically-engineered animals. Unfortunately, lesser-developed countries (LDCs), which can benefit the most from such industries, do not provide adequate patent protection for transgenic animals, even though patent protection for transgenic animals could ultimately lead to reduction in starvation and disease, two of the biggest problems facing many LDCs. The United States should pursue bilateral negotiations with developing countries in the …
Recent Developments In Inter-American Commercial Arbitration, Charles Robert Norberg
Recent Developments In Inter-American Commercial Arbitration, Charles Robert Norberg
Northwestern Journal of International Law & Business
Arbitration has become an effective procedure for resolving international commercial disputes in the Western Hemisphere. A framework of treaties exists, establishing substantive law and procedure for that purpose. The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) has been ratified by sixteen Western Hemisphere countries. The Inter-American Convention on International Commercial Arbitration (1975) has been ratified by thirteen countries. Furthermore, the World Bank's Convention establishing the International Centre for the Settlement of Investment Disputes has been ratified by four Latin American countries and six anglophobe Western Hemisphere countries and it has been signed but not …
Non-Lawyers In International Commercial Arbitration: Gathering Splinters On The Bench, James E. Meason, Alison G. Smith
Non-Lawyers In International Commercial Arbitration: Gathering Splinters On The Bench, James E. Meason, Alison G. Smith
Northwestern Journal of International Law & Business
In light of the frequent appearance of arbitration clauses in international contracts, and the volume of litigation handled in this manner, international commercial arbitration' has become a favorite subject of commentators who have primarily focused on the relative benefits of arbitration versus litigation and cross-institutional rules comparisons. One area that has received scant attention is the factors concerning the actual selection of particular individuals to serve as arbitrators. This article looks at how arbitrators are chosen today within the institutional context. Following this are general discussions of selected professions for indications of their members' inherent suitability for and adaptability to …
The International Arbitrator: From The Perspective Of The Icc International Court Of Arbitration, Stephen R. Bond
The International Arbitrator: From The Perspective Of The Icc International Court Of Arbitration, Stephen R. Bond
Northwestern Journal of International Law & Business
In short, an arbitrator must have what Professor Pierre Lalive has called the "ability to judge," which implies a capacity to evaluate conflicting statements of law and/or fact and to have the wisdom, courage and expertise to reach and render a decision in such a way that the parties - and perhaps most of all the losing party - will recognize both the essential fairness of the procedure and the futility of efforts to overturn the award or oppose its execution. Only when this occurs, as happens in about ninety percent of ICC cases, can arbitration truly achieve the relative …
The Selection Of Choice Of Law Provisions In International Commercial Arbitration: A Case For Contractual Depeҫage, Craig M. Gertz
The Selection Of Choice Of Law Provisions In International Commercial Arbitration: A Case For Contractual Depeҫage, Craig M. Gertz
Northwestern Journal of International Law & Business
One additional advantage of arbitration, the parties' ability to predetermine the law governing the resolution of the dispute, has gained growing recognition in recent years. This recognition, however, has been myopic to some extent. Some commentators see choice of law options confined either to the selection of one national legal system from several possibilities or to the selection of a single national, international, or anational legal system. Such a self-imposed limitation of the applicable law to one system of law often denies parties many of the benefits and powers allowed them in international commercial arbitration. As an alternative, an agreement …
The Place Of Arbitration In The Conflict Of Laws Of International Commercial Arbitration: An Exercise In Arbitration Planning, Filip De Ly
Northwestern Journal of International Law & Business
Growing complexities in the law and practice of international commercial arbitration and a certain loss of the spirit of arbitration require reflection by all interested parties (litigating parties, their counsels, arbitrators and arbitration centers) in order to maintain some of the traditional advantages of arbitration… The purpose of such reflection is to maintain the reputation of international commercial arbitration as a speedy and cost efficient dispute resolution mechanism for international business transactions. This may be achieved by an attempt to identify the options which interested parties may have and to indicate their respective advantages and disadvantages. This process may be …
The Recognition Of Foreign Privileges In United States Discovery Proceedings, Kurt Riechenberg
The Recognition Of Foreign Privileges In United States Discovery Proceedings, Kurt Riechenberg
Northwestern Journal of International Law & Business
Discovery of evidence that is not available in the United States is a frequent problem in international litigation before United States courts. A common element of international litigation in such complex cases is that key witnesses reside abroad or crucial business documents belonging to foreign litigants are located in other jurisdictions. Due to the fact-dependent nature of these cases, courts in the United States have been confronted with numerous legal and practical obstacles in their attempts to obtain evidence, whether written or oral, from foreign litigants or non-party witnesses. Discovery orders of United States courts relating to testimonial or documentary …
Mitsubishi Motors Corp. V. Soler Chrysler-Plymouth, Inc: International Arbitration And Antitrust Claims, Lisa Sopata
Mitsubishi Motors Corp. V. Soler Chrysler-Plymouth, Inc: International Arbitration And Antitrust Claims, Lisa Sopata
Northwestern Journal of International Law & Business
Arbitration is an attractive alternative for parties entering into commercial transactions. Parties to international contracts often include arbitration clauses in an attempt to protect their rights and to eliminate uncertainties in the event of a dispute. A court may nevertheless treat a given dispute as nonarbitrable if the issue is highly charged with conflicting public policy concerns. The United States Supreme Court in the recent landmark decision, Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., held that private antitrust claims are arbitrable in a transaction arising in international commerce. The court ruled in a five-to-three decision that if an international contract …
New Trends In The Practical Application Of Icc Rules Of Arbitration, Yves Derains
New Trends In The Practical Application Of Icc Rules Of Arbitration, Yves Derains
Northwestern Journal of International Law & Business
During the 1970s, arbitration has become the normal way of settling disputes arising in international trade. The statistics provided by the International Chamber of Commerce (ICC) Court of Arbitration (the Court, or the Court of Arbitration) are evidence of the incidence of the increasing recourse to arbitration by businesses involved in international transactions; of an increase in the amounts in dispute; of an increasing diversity in the nationalities of clients3 as well as in the types of the disputes submitted to arbitration.4 The development of international arbitration in the last decade may be explained by the fact that no other …