Dispute Resolution and Arbitration Commons^™

The Privatization Of Civil Justice: An Exposition On New York's Prompt Payment Law And Its Imposition Of Mandatory Arbitration, James M. Tsimis

Touro Law Review

No abstract provided.

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 …

Court Litigation Over Arbitration Agreements: Is It Time For A New Default Rule?, Jack Graves

Scholarly Works

Court litigation over the existence or validity of arbitration agreements is a major threat to the efficacy of international commercial arbitration. While New York Convention Article II(3) requires a court to “refer the parties to arbitration” when faced with a valid and effective arbitration agreement, it fails to provide any guidance with respect to the process for answering that question, thus leaving the issue to national law. A recalcitrant respondent may, therefore, have a variety of options for court challenges—based on a disparate array of national laws—in seeking to delay or at least complicate any claims subject to arbitration. This …

Court Litigation Over Arbitration Agreements: Is It Time For A New Default Rule?, Jack Graves

Scholarly Works

Court litigation over the existence or validity of arbitration agreements is a major threat to the efficacy of international commercial arbitration. While New York Convention Article II(3) requires a court to “refer the parties to arbitration” when faced with a valid and effective arbitration agreement, it fails to provide any guidance with respect to the process for answering that question, thus leaving the issue to national law. A recalcitrant respondent may, therefore, have a variety of options for court challenges—based on a disparate array of national laws—in seeking to delay or at least complicate any claims subject to arbitration. This …

Arbitration As Contract: The Need For A Fully Developed And Comprehensive Set Of Statutory Default Legal Rules, Jack Graves

Scholarly Works

This article addresses an increasingly important topic in today’s commercial world—the United States Federal Arbitration Act. While arbitration under this Act has been subject to ever increasing criticism and calls for reform on a variety of fronts (often from the perspective of consumer or employment arbitration), this article focuses specifically on commercial, business-to-business arbitration and critically evaluates the Act as a set of default legal rules governing arbitration as a unique contractual business relationship.

The article first looks at arbitration from a contractual default rules perspective, and then employs this perspective to analyze (1) the existing federal statutory scheme, (2) …

"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.

"We Can Work It Out": Using Cooperative Mediation--A Blend Of Collaborative Law And Traditional Mediation--To Resolve Divorce Disputes, Elena Langan

Scholarly Works

No abstract provided.

Mediation Representation: Representing Clients Anywhere, Harold Abramson

Scholarly Works

No abstract provided.

Outward Bound To Other Cultures: Seven Guidelines For U.S. Dispute Resolution Trainers, Harold I. Abramson

Scholarly Works

This article was inspired by the opportunity to observe a two day negotiation training program' put together by Hamline University School of Law in Rome. It was called "Developing 'Second Generation' Global Negotiation Education." The trainers conducted a high level program for around thirty sophisticated professionals. And over forty scholars observed the training and then spent another two days discussing what was observed. Based on that experience as an observer and my own experience teaching and training abroad, along with additional research, I have identified seven guidelines for U.S. trainers. These guidelines should help trainers reduce any cultural mishaps, prepare …

Ica And The Writing Requirement: Following Modern Trends Towards Liberalization Or Are We Stuck In 1958?, Jack Graves

Scholarly Works

Article 7 of the Model Law was revised in 2006 to liberalize any requirements of form, consistent with modern commercial practices and modern legal trends reflected in national laws. To the extent adopted by national legislatures, either of the two available options under this revision will effectively eliminate any requirement of a “record of consent,” thus making arbitration agreements more easily enforceable in the adopting jurisdiction. However, any such revision of national laws on arbitration based on the revisions of Article 7 of the Model Law will not necessarily have any effect on enforcement of awards in other jurisdictions under …

"Arbitration As A Final Award: Challenges And Enforcement" Published As Chapter 10 In International Sales Law And Arbitration: Problems, Cases, And Commentary, Jack M. Graves, Joseph F. Morrissey

Scholarly Works

No abstract provided.

Crossing Borders Into New Ethical Territory: Ethical Challenges When Mediating Cross-Culturally, Harold Abramson

Scholarly Works

No mediator wants to be charged with cultural imperialism when mediating private international disputes. And yet, mediators run this risk whenever the mediator resists doing what the parties want done. This cultural challenge is different than what mediators customarily encounter. Instead of the gap arising between the parties, the gap is between the mediator and the parties. In this article, I will consider how a mediator might ethically bridge mediator-parties gaps while generally avoiding the harsh charge of cultural imperialism. Through a hypothetical in which a mediator's values clash with the values of the parties, I will develop a four …

Consequences Of Power, Tamara Relis

Scholarly Works

This Article challenges a basic premise that litigants and their attorneys broadly understand and desire similar things from litigation-track mediation processes. In providing new empirical research from medical malpractice cases, I offer disconcerting evidence of the surprising degree to which perceptions and meanings ascribed to these litigation-track processes are not only diverse, but frequently contradictory. I demonstrate that notwithstanding their different allegiances, lawyers on all sides of cases have correspondingly similar understandings of the meaning and purpose of litigation-track mediations. At the same time, I show how plaintiffs and defendants have the same understandings and visions of what mediation is …

Selecting Mediators And Representing Clients In Cross-Cultural Disputes, Harold Abramson

Scholarly Works

Even an adept negotiator can be baffled by cultural differences. When a negotiation reaches an impasse because of an unfamiliar cultural interest or a miscommunication between the parties due to different styles of communicating, negotiating, or decision-making, the negotiator might find it helpful to enlist assistance from a culturally-trained and culturally-appropriate mediator. This Article considers how such a third party can help you, as a negotiator, bridge cultural differences. It considers when to seek aid from a mediator, what the credentials of the mediator ought to be, and the impact of the mediator's approach on the way you represent your …

Problem-Solving Advocacy In Mediations: A Model Of Client Representation, Harold Abramson

Scholarly Works

Many sophisticated and experienced litigators realize that mediation calls for a different approach, but they still muddle through the mediation sessions. They are learning on the job. Even though many attorneys prefer a problem-solving approach to negotiations, attorneys are still in the early stages of figuring out how to do it in mediations. Many attorneys went to law school before courses on dispute resolution were offered, and the dispute resolution courses that have emerged in law schools over the last twenty-five years have been largely limited to teaching students to be mediators, not advocates. Continuing legal education programs are only …

Final Offer Arbitration, Harold I. Abramson

Scholarly Works

No abstract provided.

Problem-Solving Advocacy In Mediations, Harold I. Abramson

Scholarly Works

No abstract provided.

Mining Mediation Rules For Representation Opportunities And Obstacles, Harold I. Abramson

Scholarly Works

No abstract provided.

The Employment Law Decisions Of The October 2000 Term Of The Supreme Court: A Review And Analysis, Ann C. Hodges, Douglas D. Scherer

Scholarly Works

During the October 2000 Term, the Supreme Court delivered major setbacks for employees in Circuit City Stores, Inc. v. Adams,' which upheld mandatory and binding arbitration of federal and state employment discrimination claims through arbitration clauses forced upon employees as a condition of employment, and in Board of Trustees of the University of Alabama v. Garrett, which shielded state employers from federal court law suits brought under the Americans with Disabilities Act by victims of disability discrimination in employment. Employees escaped harm in Pollard v. E.I du Pont de Nemours & Co., in which the Court followed nearly unanimous circuit …

The Role Of Dispute Settlement In World Trade Law: Some Lessons From The Kodak-Fuji Dispute, John Linarelli

Scholarly Works

No abstract provided.

Protocols For International Arbitrators Who Dare To Settle Cases, Harold Abramson

Scholarly Works

The best time to settle an international business dispute can be after the international arbitration proceeding has been commenced. Just like in court litigation, parties may be ready to settle only after the adjudicatory process has begun and even has progressed. In court, judges commonly open the door to settlement; they hold settlement conferences and even actively participate in settlement negotiations. But arbitrators rarely open the door to settlement; when they do, they risk losing their jobs. So, what can international arbitrators safely do? What dare they do?

In this article, the author explores the dilemma presented when one neutral …

Arbitration Of Workplace Discrimination Claims: Federal Law And Compulsory Arbitration, Norris Case

Touro Law Review

No abstract provided.

Time To Try Mediation Of International Commercial Disputes, Harold Abramson

Scholarly Works

No abstract provided.

Predisposed With Integrity: The Elusive Quest For Justice In Tripartite Arbitrations, Deseriee A. Kennedy

Scholarly Works

No abstract provided.

Settling In New York: Abdicating Traditional Agency Principles In The Context Of Settlement Disputes, Dean C. Harvey

Touro Law Review

No abstract provided.

A Primer On Resolving Disputes: Lessons From Alternative Dispute Resolution, Harold I. Abramson

Scholarly Works

No abstract provided.

Trial By Jury

Touro Law Review

No abstract provided.

The Problem Of Selecting A Valuation Date For Property Subject To Equitable Distribution In New York

Touro Law Review

No abstract provided.

Surrogate Parenting After Baby M: The Ball Moves To The Legislature’S Court, John R. Dunne, Gregory V. Serio

Touro Law Review

No abstract provided.

Procedural And Substantive Problems In Complex Litigation Arising From Disasters, Jack B. Weinstein

Touro Law Review

No abstract provided.