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Articles 271 - 300 of 344
Full-Text Articles in Dispute Resolution and Arbitration
Designing The Gaps In Mediation Architecture, Nadja Alexander
Designing The Gaps In Mediation Architecture, Nadja Alexander
Research Collection Yong Pung How School Of Law
In this post on the Kluwer Mediation Blog, the 'gaps' in the developing architecture of mediation, and the design for regulatory spaces are explored.
The Mediation Meta-Model: The Realities Of Mediation Practice, Nadja Alexander
The Mediation Meta-Model: The Realities Of Mediation Practice, Nadja Alexander
Research Collection Yong Pung How School Of Law
In this article, I expand on the literature and present a meta-model for thinking about mediation practice. The Mediation Meta-Model is a structure for identifying different mediation approaches and how they relate to one other. It makes no claim to universal application. Rather, it offers a conceptual road-map for an increasingly complex and sophisticated array of practices which share the name mediation. The theoretical foundations and analysis for the Meta-Model have been included in previous work (2008).It is well known in Australian mediation circles that mediation practice does not always correspond to the dominant facilitative training model—even though, on the …
Options Available To An Unsuccessful Party In An Arbitration, Darius Chan
Options Available To An Unsuccessful Party In An Arbitration, Darius Chan
Research Collection Yong Pung How School Of Law
No abstract provided.
Singapore Apex Court Lays Down Clear Framework For Arbitrability Of Insolvency-Related Claims, Darius Chan
Singapore Apex Court Lays Down Clear Framework For Arbitrability Of Insolvency-Related Claims, Darius Chan
Research Collection Yong Pung How School Of Law
No abstract provided.
Reaching A Settlement Before The Arbitration Hearing, Darius Chan
Reaching A Settlement Before The Arbitration Hearing, Darius Chan
Research Collection Yong Pung How School Of Law
No abstract provided.
An Unjust Enrichment Claim For The Mistaken Improver Of Land, Hang Wu Tang
An Unjust Enrichment Claim For The Mistaken Improver Of Land, Hang Wu Tang
Research Collection Yong Pung How School Of Law
In recent years, the law of unjust enrichment especially in the context of restitution for mistake has developed at an unprecedented pace. The modern jurisprudence of the law of restitution for mistake is exemplified by the causative mistake approach, i.e. if the claimant's mistaken belief causes the claimant to enrich the defendant, the claimant is prima facie entitled to succeed. The principal research question in this paper is whether the causative mistake approach is applicable to a claimant who mistakenly improves the land of the defendant. Recent case law and the most prominent academic treatise in this area suggest that …
Raising The Bar For The Mens Rea Requirement In Common Intention Cases: Daniel Vijay S/O Katherasan V Pp, Eunice Chua
Raising The Bar For The Mens Rea Requirement In Common Intention Cases: Daniel Vijay S/O Katherasan V Pp, Eunice Chua
Research Collection Yong Pung How School Of Law
Recently, the Court of,4ppeal in Daniel Vijay s/o Katherasan v. Public Prosecutor took the view thatthe law on common intention was not adequately settled in Singapore despite the 138-year history ofs. 34 ofthe Penal Code. It went on to give an extensive review of the cases interpreting the section aswell as its Indian equivalent, before setting out the proper approach to take in "twin crime" commonintention cases, focusing specifically on the mens rea element required in order to establish constructiveliabilityfor the secondary crime. This case note seeks to highlight the changes brought about byDaniel Vijay s/o Katherasan v. Public Prosecutor …
Maintaining And Enhancing The Integrity Of Adr Processes: From Principles To Practice Through People, Kellam, Nadja Alexander, Nadja Marie Alexander, Andrew Bickerdike, Andrew Greenwood, Margaret Halsmith, Norah Hartnett, Ian Hanger Hanger, Tom Howe, Elizabeth Kelly, Stephen Lancken, Gaye Sculthorpe, Lindsay Smith, Warwick Soden, Tania Sourdin
Maintaining And Enhancing The Integrity Of Adr Processes: From Principles To Practice Through People, Kellam, Nadja Alexander, Nadja Marie Alexander, Andrew Bickerdike, Andrew Greenwood, Margaret Halsmith, Norah Hartnett, Ian Hanger Hanger, Tom Howe, Elizabeth Kelly, Stephen Lancken, Gaye Sculthorpe, Lindsay Smith, Warwick Soden, Tania Sourdin
Research Collection Yong Pung How School Of Law
Nadja Alexander was contributor to the Report as council member of National Alternative Dispute Resolution Advisory Council.In this Report, the National Alternative Dispute Resolution Advisory Council (NADRAC) canvasses particular issues that support the integrity of alternative dispute resolution (ADR) processes, and that are identified in the Terms of Reference. These are: conduct obligations, rules about confidentiality and inadmissibility of communications within ADR processes, and immunity of ADR practitioners from being sued. The Report explains NADRAC’s understanding of the breadth of the concept of integrity as it applies to ADR processes, canvasses the views of interested parties about the integrity of …
Redemption And Resistance: Lessons In Non-Violent Action From Early Aotearoa/New Zealand, Ian Macduff
Redemption And Resistance: Lessons In Non-Violent Action From Early Aotearoa/New Zealand, Ian Macduff
Research Collection Yong Pung How School Of Law
This article provides a brief account of the non-violent resistance of two Maori chiefs, Te Whiti and Tohu, in 19th century New Zealand. Each example of such non-violent or passive resistance is unique to its historical and cultural context; but at the same time there is a tangible common ground between this example and those found elsewhere, such as Martin Luther King and Gandhi. This article will also draw a link between the politics of acts of resistance – in this case, resistance to the forceful acquisition of Maori land – and faith-based justifications. In conclusion, it will be suggested …
Four Mediation Stories From Across The Globe, Nadja Alexander
Four Mediation Stories From Across The Globe, Nadja Alexander
Research Collection Yong Pung How School Of Law
In the past 30 years mediation has emerged as a significant dispute resolution narrative around the world. It contains many stories told by different story-tellers -- stories about diverse practices, communities and courts, in creasing institutionalisation, regulation, accreditation, standards, research and theoretical developments. Together these stories weave a tapestry of our social and cultural experience of mediation and define mediation as a narrative, a practice and a profession.
The New International Arbitration (Amendment) - A Broader Framework For Interim Relief Or Just A Tune-Up?, Mahdev Mohan, Eu-Yen Tay
The New International Arbitration (Amendment) - A Broader Framework For Interim Relief Or Just A Tune-Up?, Mahdev Mohan, Eu-Yen Tay
2008 Asian Business & Rule of Law initiative
Singapore aspires to retain its place as a trusted arbitration hub for commercial parties all around the world. The recently proposed amendments to the International Arbitration Act seek to bring Singapore closer to meeting international standards in relation to the arbitration procedure. While the initiative should be applauded, those amendments relating to interim measures fall somewhat short of expectations of a new, broader framework of curial assistance in aid of arbitration. This article explores the uncertainties that could arise from the proposed amendments, either because of phrasing or of an omission to embrace the Model Law. It is hoped that …
The New International Arbitration (Amendment) Bill – A Broader Framework For Interim Relief Or Just A Tune-Up?, Mahdev Mohan, Eu-Yen Tay
The New International Arbitration (Amendment) Bill – A Broader Framework For Interim Relief Or Just A Tune-Up?, Mahdev Mohan, Eu-Yen Tay
Research Collection Yong Pung How School Of Law
Singapore aspires to retain its place as a trusted arbitration hub for commercial parties all around the world. The recently proposed amendments to the International Arbitration Act seek to bring Singapore closer to meeting international standards in relation to the arbitration procedure. While the initiative should be applauded, those amendments relating to interim measures fall somewhat short of expectations of a new, broader framework of curial assistance in aid of arbitration. This article explores the uncertainties that could arise from the proposed amendments, either because of phrasing or of an omission to embrace the Model Law. It is hoped that …
A Legal And Economic Analysis Of The Conflict Of Property Rights On Generic Names: Based On The “Little Sheep” Trademark Dispute, Wei Zhang, Ming Yang
A Legal And Economic Analysis Of The Conflict Of Property Rights On Generic Names: Based On The “Little Sheep” Trademark Dispute, Wei Zhang, Ming Yang
Research Collection Yong Pung How School Of Law
自我国2001年修订《商标法》接受了"第二含义理论"——即承认"共用名称"通过使用可以产生显著性,从而得以注册为商标(第11条第2款)——以来,相关司法实践中的争议一直不断,尤其是引起广泛争议的"小肥羊"商标案的发生,使得人们开始担忧,允许"共用名称"注册为商标而给经营者带来的激励,不免引发过度投资,从而导致无效率的竞争和不公平的结果。但是,从"共用名称"之本质的经济分析出发,我们可以发现,允许该标识注册为商标实际上是避免出现"公地灾难"的有效率的做法。另外,商标法上相关制度的设置,也不会产生学者们所担心的不公平的结果。
Why Egregious Errors Of Law May Yet Justify A Refusal Of Enforcement Under The 'New York Convention', Seng Wei, Edward Ti
Why Egregious Errors Of Law May Yet Justify A Refusal Of Enforcement Under The 'New York Convention', Seng Wei, Edward Ti
Research Collection Yong Pung How School Of Law
Parties on the losing side in international arbitration have long argued that an error of law is a defence to the enforcement of foreign awards. Citing article V(2)(b) of the New York Convention, such parties have argued that a manifest error of law is a violation of public policy. While national courts have generally paid little heed to this line of argument, this article seeks to raise the possibility that there may yet be the exceedingly rare instance in which a court should preclude enforcing an award marred by a hideous error of law. Limited review of an arbitrator's application …
Introducing The Negotiation Navigation Map, Nadja Alexander, Jill Howieson
Introducing The Negotiation Navigation Map, Nadja Alexander, Jill Howieson
Research Collection Yong Pung How School Of Law
In this article we reflect upon negotiation strategies and explore the utility of reconciling the dichotomy between interest-based and positional approaches to negotiation. Ultimately, we advocate for a ‘constructive model’ of negotiation and introduce the ‘negotiation navigation map’ that serves the negotiator well in preparing for this approach to negotiation.
Negotiation And Mediation In 3d: Completing The Models For Practice And Education, Jill Howieson, Nadja Alexander
Negotiation And Mediation In 3d: Completing The Models For Practice And Education, Jill Howieson, Nadja Alexander
Research Collection Yong Pung How School Of Law
Reflecting on two major conferences held in September 2009 at the LEADR conference, Kongress, and the 36th Australian Legal Convention around the same time, it appears that ADR in Australia might be going ‘back to the future’. Discussion of the 1970s concept of the ‘multi-door courthouse’ as a model for Australian courts in the 21st century and an acknowledgment of the enduring essence of the 1980s interest-based negotiation model at both conferences, created a curious sense of déjà vu — and raised the question: where do we go from here?
Good Faith As The Absence Of Bad Faith: The Excluder Theory In Mediation, Nadja Alexander
Good Faith As The Absence Of Bad Faith: The Excluder Theory In Mediation, Nadja Alexander
Research Collection Yong Pung How School Of Law
Views vary as to the behaviour necessary to constitute good faith — or equivalent concepts such as genuine and reasonable attempts — in mediation and as to behaviour which falls below the standard.
Mediation And The Myth Of Universality, Nadja Alexander
Mediation And The Myth Of Universality, Nadja Alexander
Research Collection Yong Pung How School Of Law
In his essay entitled ‘Mediation: Pfade zum Frieden’, Professor Montada has made an important contribution to the mediation literature. He questions the universality of the standard mediation model that appears to be sweeping the world with enormous zeal and in doing so puts forward theories and principles to substantiate his view. To a large extent I agree with what the author has to say about the scope and potential for mediation. In particular I support his view that professional mediators need to be made aware of the cultural limitations of the model in which they are trained. As I write …
Inducing Breach Of Contract, Conversion And Contract As Property, Pey Woan Lee
Inducing Breach Of Contract, Conversion And Contract As Property, Pey Woan Lee
Research Collection Yong Pung How School Of Law
This article seeks to understand contractual rights through an examination of the possible ‘property’ content in contracts in the context of the inducement tort and conversion. It argues that, contrary to popular perception, contracts and property are different shades of a similar phenomenon. Not being a reified ‘thing’ with stable features and structure, property is a relative rather than an absolute concept. To determine whether the holder of an intangible resource ought to be conferred with ‘property’ or exclusive control of access to such resource, one has to evaluate the relevant practical, legal and moral considerations. Applied to the context …
Schisms In Humanitarianism: The Khmer Rouge Tribunal's First Hearing, Mahdev Mohan
Schisms In Humanitarianism: The Khmer Rouge Tribunal's First Hearing, Mahdev Mohan
Research Collection Yong Pung How School Of Law
Mass atrocity invokes humanitarian impulses in all of us. But when a genocidaire casts himself as a victim, the right response is less straightforward. This article analyzes a recent hearing of one of Cambodia's most feared Khmer Rouge cadres who stands trial before a newly established hybrid tribunal and suggests the consequences of responding to war crime trials with polemics rather than principle.
The Evolution And Utilization Of The Gatt/Wto Dispute Settlement Mechanism, Pao Li Chang
The Evolution And Utilization Of The Gatt/Wto Dispute Settlement Mechanism, Pao Li Chang
Research Collection School Of Economics
This paper attempts to study the usage of the GATT/WTO dispute settlement mechanism and to explain its patterns across different regimes and decades, using a unified theoretical model. This study first explores the role of the degree of legal controversy over a panel ruling in determining countries’ incentives to block/appeal a panel report under the GATT/WTO regime. The model is able to explain the surge in blocking incidence during the 1980s over the preceding GATT years and the immense frequency at which the new appellate procedure under the WTO is invoked. Furthermore, a two-sided asymmetric information framework is used to …
Mediation And The Myth Of Universality, Nadja Alexander
Mediation And The Myth Of Universality, Nadja Alexander
Research Collection Yong Pung How School Of Law
In his essay entitled ‘Mediation – Pfade zum Frieden’, Professor Montada has made an important contribution to the mediation literature. He questions the universality of the standard mediation model that appears to be sweeping the world with enormous zeal and in doing so puts forward theories and principles to substantiate his view. In this article, Nadja Alexander analyses what the author has to say about the scope and potential for mediation.
Death Of The Role-Play, Nadja Alexander, Michelle Lebaron
Death Of The Role-Play, Nadja Alexander, Michelle Lebaron
Research Collection Yong Pung How School Of Law
Setting someone up to fail does indeed sound unfair. In fact it could be described as an ambush – outlaw facilitators lying in wait for unsuspecting students. Not only is this unsettling in a training environment, we can ask whether this lack of transparency runs counter to the behavior expected of negotiators and mediators. Far from being a figment of our fertile imaginations, this short vignette is drawn from a real life learning situation at which both authors were present. Participants were asked at the beginning of the postgraduate workshop about their learning preferences. While most replied enthusiastically about learning …
The Paradox Of Victim-Centrism: Victim Participation At The Khmer Rouge Tribunal, Mahdev Mohan
The Paradox Of Victim-Centrism: Victim Participation At The Khmer Rouge Tribunal, Mahdev Mohan
Research Collection Yong Pung How School Of Law
It has been claimed - though not proved - that victims will be benefited by participation in international criminal tribunals. This article interrogates this claim in the context of victim participation at the Extraordinary Chambers in the Courts of Cambodia (ECCC), commonly referred to as the Khmer Rouge Tribunal. Based on interviews with Cambodian victims and Tribunal affiliates, it examines why and how the Tribunal permits victims to intervene as les parties civile, pulling together the normative and legal basis for this mode of victim participation. This article does not purport to generalize with confidence about Cambodian victims in general, …
Using Blogs As A Teaching Tool In Negotiation, Ian Macduff
Using Blogs As A Teaching Tool In Negotiation, Ian Macduff
Research Collection Yong Pung How School Of Law
This article reports on the experimental use of blogs as a teaching tool in a course on negotiation and mediation. The blogs were of two kinds: individual journal blogs accessible only by the student author and the course instructor, and a class or collective blog, accessible by all members of the course. The use of blogs builds on the familiar use of journals as a tool for reflection and personal review and adopts the technology of online communication with which the student body is increasingly familiar and comfortable. The article reports on the student response to this development and the …
Mediating Commitments, Ian Macduff
Mediating Commitments, Ian Macduff
Research Collection Yong Pung How School Of Law
This paper explores the implications of one aspect of intercultural theory –the dimension of power distance– in order to comment on the nature of commitments in the mediation process. The familiar model of Western ediation assumes that parties can identify core interests and negotiate around those, through prioritising, trading and balancing. At the heart of our thinking about commitments are our ideas about agency, autonomy, and accountability. However, a core implication of empirical work on power distance suggests that expectations of deference may lead some participants to avoid direct decision-making responsibility and, rather than work towards commitments, to act on …
The Mediation Metamodel: Understanding Practice, Nadja Alexander
The Mediation Metamodel: Understanding Practice, Nadja Alexander
Research Collection Yong Pung How School Of Law
The mediation metamodel provides a systematic framework for understanding mediation as it is practiced in a variety of professional and cultural contexts. Six mediation practices are introduced within the framework of the metamodel: settlement mediation, facilitative mediation, transformative mediation, expert advisory mediation, wise counsel mediation, and tradition-based mediation. The relationships of these different practices to one another are explored and the assumptions underlying them are examined with reference to the literature. The metamodel provides orientation in the dispute resolution field not only for mediators, parties, and their lawyers, but also for regulators, referring bodies, researchers, and students of mediation.
The Effective Reach Of Choice Of Law Agreements, Tiong Min Yeo
The Effective Reach Of Choice Of Law Agreements, Tiong Min Yeo
Research Collection Yong Pung How School Of Law
Two fundamental principles relating to party autonomy developed in the recent history of the conflict of laws. Despite initial reservations, the law today takes for granted that the parties’ agreement is nearly conclusive in respect of both their choice of litigation forum and their choice of the law governing the contractual relationship. Meanwhile, the law of obligations – in tort, restitution and equity – has grown apace; disputes between contracting parties today are rarely confined to pure contractual issues. Can contracting parties choose the law to govern non-contractual disputes in cross-border litigation? In the absence of such choice, to what …
Mediation And The Art Of Regulation, Nadja Alexander
Mediation And The Art Of Regulation, Nadja Alexander
Research Collection Yong Pung How School Of Law
In a political climate filled with talk of how to best regulate mediation, it is surprising that so little regulatory theory has been brought into the discussion. The aim of this paper is to provide a conceptual framework for informed debate in relation to the regulation of mediation. The framework comprises two parts. First, four international regulatory trends in mediation are introduced: the market-contract, self-regulatory, formal framework and formal legislative approaches. Against this background the second part deals with the specific content of regulatory provisions on mediation. The resulting framework is called the Mediation Mix, which brings form and content …
The Evolution And Utilization Of The Gatt/Wto Dispute Settlement Mechanism, Pao-Li Chang
The Evolution And Utilization Of The Gatt/Wto Dispute Settlement Mechanism, Pao-Li Chang
Research Collection School Of Economics
This paper provides a theoretical framework of dispute settlement to explain the surge in blocking incidence of GATT panel reports during the 1980s and the variations in withdrawn incidence versus total disputes across different decades of the GATT regime. The study first suggests the role of the degree of legal controversy over a panel ruling in determining countries' incentives to block (appeal) a panel report under the GATT (WTO) regime. The study then analyzes the effects of political power on countries' incentives to use, and their interactions in using, the dispute settlement mechanism, when two-sided asymmetric information exists regarding panel …