Dispute Resolution and Arbitration Commons^™

The Ongoing Role Of Alternative Dispute Resolution In Federal Government Litigation, Peter R. Steenland, Jr., Peter A. Appel

Scholarly Works

This essay demonstrates that within appropriate guidelines, ADR has an important and growing role in the conduct of government litigation. To the extent that ADR can help the government save resources, this alone is of considerable public interest. More importantly ADR can help the government settle entire disputes rather than those pieces of disputes that become litigation events. ADR also involves the parties more directly in shaping the resolution of a dispute, and can often provide a result that is beyond the capacity of a court to provide. Because of the direct participation by the parties in mediation processes, ADR …

International Arbitration And Procedures To Enforce Awards In The Relationship Between The United States And Germany, Michael Kronenburg

LLM Theses and Essays

Arbitration has long been regarded as a process that combines finality of decision with speed, low expense, and flexibility in solving problems. For these reasons, arbitration is often favored over litigation for dispute resolution. Particularly in international cases, a businessman may avoid litigation in a foreign country for various reasons: he may be unfamiliar with the proceedings; he may be afraid to find a “forum hostile” because of the different legal and cultural background of the judges; and he may wish to avoid the uncertainty concerning the law arising from the contract. Arbitration proceedings have been held constitutional by the …

Reinsurance: Bad Faith Considerations And Insolvency Dilemma, Hui-Ju Hsieh

LLM Theses and Essays

Reinsurance is insurance that an insurance company purchases from another insurance company. The original insurance company is called the reinsured, and the insurance company that is contracted is called the reinsurer. The main purpose of reinsurance is to disperse or spread the risk of loss. The reinsurance relationship is frequently characterized as an exercise of fiduciary responsibility based upon an undertaking of utmost good faith between contracting parties. However, disputes arise; most litigation involving reinsurance has been between reinsurers and persons not party to the reinsurance agreement. This paper’s first major area of discussion is the relationship between the reinsurer …

Defenses To Enforcement Of Foreign Arbitral Awards Under The United Nations Convention Of 1958 Focusing On Article V Of The Convention And Practice In U.S. Courts, U-Kyung Sung

LLM Theses and Essays

This LL.M. thesis analyzes the defenses available to parties resisting enforcement of foreign arbitral awards under the United Nations Convention on the Recognition and Enforcement of Foreign Arbital Awards, with particular focus on Article V and its application in United States federal courts. The work examines each Article V(1) defense — including invalidity of the arbitration agreement, violation of due process, excess of arbitral authority, improper tribunal composition or procedure, and the non-binding, set aside, or suspended award defense — as well as the Article V(2) defenses of non-arbitrability and public policy. The work also addresses defenses based on reservations …

Remedies For Breach Of Contract Under The Uniform Commercial Code, The General Conditions Of Delivery Of Goods Of The Council For Mutual Economic Assistance And The United Nations Convention On Contracts For The International Sale Of Goods, Hasan T. Choudhury

LLM Theses and Essays

This thesis attempts to examine and compare an important component of any law of contract for the sale of goods, namely, the remedies available to an aggrieved party following a breach of contract. The first part of the thesis deals with the historical background of the uniform laws, their scope and specific characteristics. The following chapters examine the status, role and significance of the two major remedies - the damages and specific performance, in the major legal systems and the uniform laws. In addition, it compares the remaining remedial provisions and concludes that, although the major legal systems of the …

The Impact Of Arbitral Awards On The Development Of International Law: The Development Of The International Law Concerning The Taking Of Foreign-Owned Property, Rainer Gildeggen

LLM Theses and Essays

The thesis concludes that arbitral awards do have an impact on the development of international law. It focuses on arbitral awards rendered in disputes between states and on those rendered in investment disputes between states and aliens. In Chapter II theoretical considerations concerning the influence of arbitral awards on the development of the international law are made. Chapter III, which examines the impact of arbitral awards on the development of some rules of the international law concerning the taking of foreign-owned property, illustrates the role which arbitral awards rendered in investment disputes play in the development of international law.

The Law Governing Arbitration Agreements In International Trade, Daniele Lingua

LLM Theses and Essays

This paper on the law applicable to arbitration agreements will start with an examination of the provisions adopted in international conventions on arbitration. The reason for this approach lies in the fact that, when national statutes contain choic of law rules specifically applicable to arbitration agreements, such rules tend to conform to those adopted by the conventions. However, problems of incompatibility between national choice of law provisions and the interpretation of international conventions may arise in the case of those countries which extend their general choice of law rules regarding contracts to rules concerning international arbitration agreements. Finally, this paper …

The Revised Hague Rules On Bills Of Lading, Gabriel M. Wilner

Scholarly Works

In what amounts to a proposed new Convention to replace the "Hague Rules," the United Nations Commission on International Law (UNCITRAL) has included an Article (22) authorizing parties to a contract for the carriage of goods to provide for arbitration of disputes arising therefrom. States which become parties to the Convention would be required to give effect to such a contract. The proposed Convention gives the plaintiff much the same options with respect to either the judicial or the arbitral forum. These options as to locale tend to favor the defending party -- usually the carrier. On the other hand, …

The Peaceful Settlement Of International Disputes Within The United Nations System, Giovanni Acerbi

LLM Theses and Essays

The purpose of this thesis will be, after having examined generally the principles which regulate the settlement of international disputes under international law, to understand the function that the United Nations has in the settlement of disputes and, particularly, to see the role played by the General Assembly and the Security Council in preserving peace and security, including the pacific settlement of disputes. In order to do that, we cannot avoid, of course, investigating and clarifying the purposes of the United Nations as an organ of conciliation. Then we will examine the United Nations structure, particularly the General Assembly, the …

Determining The Law Governing Performance In International Commercial Arbitration: A Comparative Study, Gabriel M. Wilner

Scholarly Works

Persons entering into commercial agreements of a transnational nature have often shown a preference for the arbitration tribunal rather than the court of law as the instrument for settling disputes which may arise between them.

The parties, who may be either individuals or legal persons, such as corporations, manifest their desire to employ arbitration by providing for its use in the arbitration clause of the contract. It is generally agreed that such a clause, whether or not it is considered as part of the main contract, is consensual in nature. But the significance of the agreement to arbitrate is determined …