Dispute Resolution and Arbitration Commons^™

The Parts Are Greater Than The Sum: What I Learned From My Mediation Clinic Students, Floralynn Einesman

Faculty Scholarship

I co-created the Mediation Clinic at California Western School of Law (hereafter CWSL) with my colleague Linda Morton in 1996 to provide students the opportunity to learn the process of mediation and to mediate live disputes in the community. We recognized the importance of “soft skills” such as communication, collaboration, initiative, and adaptability and therefore we sought to create an experiential learning opportunity for the students that encouraged them to nurture those skills. We wanted to teach students conflict resolution skills and to have them work together to use those skills to help individuals in the community resolve actual disputes. …

International Arbitration, Judicial Education, And Legal Elites, Catherine A. Rogers

Faculty Scholarship

One potentially devastating critique of investment arbitration is that it undermines or hampers development of national legal institutions. Investment arbitration was originally conceived of as a means of encouraging foreign investment and strengthening rule of law for investment protection. Critics often question whether it actually contributes to either of these goals. If investment arbitration could not deliver on intended goals related to improvements in local legal institutions, it would be disappointing. If, however, investment arbitration not only failed to deliver benefits to, but instead affirmatively undermined, local legal institutions, it would be devastating. While numerous critics have leveled this charge, …

Taking Care Of Business: The Legal Affairs Division From The Gatt To The Wto, Petros C. Mavroidis

Faculty Scholarship

The WTO is usually referred to as a ‘member-driven organisation’. This term aims to capture the idea that it is states and customs territories, the members of the WTO, that have the initiative to decide on the direction of the institution. The WTO Secretariat is more or less what the term denotes: staff hired in order to help the members realise their aspirations. This is as true today as it was yesterday. Actually, over the years the Secretariat has for various reasons accumulated extra responsibilities, always with the tacit acquiescence or explicit acknowledgement of the members. In short, the members …

Dramatic Sideshows At The Hearing, George A. Bermann

Faculty Scholarship

International arbitration has plenty of dramatic moments, strewn across the arbitration life cycle. They can surface quite early, as in the context of petitions for interim relief, document production, challenges to the arbitrator or various dispositive motions. They are less likely to occur at the post-award stage (i.e. annulment or opposition to the recognition or enforcement of awards), due in part to the fact that that stage typically plays out in the sober atmosphere of a national court. But more often than not, the drama associated with international arbitration takes place in and around the arbitral hearing room.

In my …

Black Cat, White Cat: The Identity Of The Wto Judges, Louise Johannesson, Petros C. Mavroidis

Faculty Scholarship

WTO judges are proposed by the WTO Secretariat and elected to act as ‘judges’ if either approved by the parties to a dispute, or by the WTO Director-General in case no agreement between the parties has been possible. They are typically ‘Geneva crowd’, that is, they are either current or former delegates representing their country before the WTO. This observation holds for both first- as well as second-instance WTO judges (e.g. Panelists and members of the Appellate Body). In that, the WTO evidences an attitude strikingly similar to the GATT. Whereas the legal regime has been heavily ‘legalized’, the people …

Dreptul Arbitral, Explicat, William W. Park

Faculty Scholarship

No abstract provided.

Enforcement Of Foreign Arbitration Agreements And Awards: Application Of The New York Convention In The United States, Louis Del Duca, Nancy A. Welsh

Faculty Scholarship

Internationalc ommercial arbitrationp rovides customized and efficient resolution for disputes arising out of transnational commerce. When arbitration occurs in states that have ratified the New York Convention, the process also offers enforceable outcomes even in states other than the one where the arbitration occurred. The United States ratified the New York Convention in 1970, and its courts overwhelmingly enforce both arbitration agreements and arbitral awards. There are exceptions, however, and American courts require the use of certain procedures.

This Article provides a brief survey of American courts' recognition and enforcement of foreign arbitration agreements and arbitral awards. It begins by …

Arbitration's Discontents: Between The Pernicious And The Precarious, William W. Park

Faculty Scholarship

Arbitration has become a victim of its own success, as its wider use has triggered a flood of doubt, disapproval and denunciation. In consequence, higher visibility for arbitral proceedings and awards has led to increased criticism, both just and unjust, with respect to arbitrator independence and impartiality. A robust dispute resolution process requires balance between fairness and efficiency, keeping arbitrators free from taint while at the same time reducing the prospect of dilatory tactics aimed at sabotaging proceedings. If litigants hope to have their disputes resolved by intelligent and experienced individuals, criteria for arbitrator impartiality and independence will need to …

The Cohasset Marshlands Dispute: International Arbitration In Colonial New England, William W. Park

Faculty Scholarship

One of the earliest international arbitrations in the Americas arose from rival claims to hayfields contested between two groups of religious dissidents. The dispute resolution process which unfolded in 1640 between the Massachusetts and Plymouth colonies takes special significance as an epochal step toward the robust cross-border cooperation that ultimately united thirteen disparate colonies into a single nation.

Using The Theories Of Exit, Voice, Loyalty, And Procedural Justice To Reconceptualize Brazil's Rejection Of Bilateral Investment Treaties, Nancy A. Welsh, Andrea Kupfer Schneider, Kathryn Rimpfel

Faculty Scholarship

In the past decade, investor-state arbitration has made tremendous gains in both credibility and use. There is now widespread accession to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID Convention” or “Washington Convention”). States have executed more than 2,000 bilateral investment treaties (BITs) defining the terms and conditions under which one (“investor”) state’s nationals and companies will invest in the other (“host”) state. Such terms include provisions allowing foreign investors to initiate arbitration proceedings against the host state, and at this point, more than 500 disputes have been submitted to investor-state arbitration. …

Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly

Faculty Scholarship

According to the U.S. Department of Justice (“DOJ”), deferred prosecution agreements are said to occupy an “important middle ground” between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that, over the last decade, the agreements have become a “mainstay” of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the “biggest change in corporate law enforcement policy in the last ten years.”

However, despite deferred prosecution’s apparent rise in popularity among law enforcement officials, the article sets forth the argument …

Bargaining In The Shadow Of The Best-Interests Standard: The Close Connection Between Substance And Process In Resolving Divorce-Related Parenting Disputes, Jana B. Singer

Faculty Scholarship

This essay, written for a Symposium celebrating the child custody scholarship of Professor Robert Mnookin, examines the close connection between changes in substantive child custody doctrine and changes in custody dispute resolution processes over the past 30 years. Part I of the article explores how the widespread adoption of an unmediated “best interest of the child” standard, and the ensuing rejection of the sole custody paradigm, precipitated a shift from adversarial to non-adversarial resolution of divorce-related parenting disputes. Part II of the essay reverses the direction of the analytic lens and considers how the shift from adversarial to non-adversarial dispute …

Public And Private In International Investment Law: An Integrated Systems Approach, Julie A. Maupin

Faculty Scholarship

Members of the invisible college of international investment lawyers are engaged in a fierce battle over the conceptual foundations of their common legal enterprise. The debate centers on whether the international legal regime governing foreign direct investment is a de facto transnational public governance system or merely an institutional support structure for the settlement of essentially private investment disputes. These attempts to establish the public versus private nature of the regime are misconceived. International investment law deals with both public and private concerns, impacts upon both public and private actors, and crosses over traditional divides separating public law from private …

Mediator Ethical Breaches: Implications For Public Policy, Sharon Press

Faculty Scholarship

Court-connected mediation, which includes both court mandated and court encouraged mediation, has become a well-established part of the judicial system in the United States. There are many public policy implications of this phenomenon. These include the underlying goals of the development of court-connection mediation and the responsibility to the public once a court-connected mediation program is established to ensure that the public has access to quality providers of mediation services. Once a court-connected mediation program has established qualifications and ethical standards for mediators, there is a public policy obligation for there also to be a mechanism to educate, reprimand or …

Barnacles, Aristocracy And Truth Denial: Three Not So Beautiful Aspects Of Contemporary Mediation, James Coben

Faculty Scholarship

In this article, I examine the themes of self-determination, mediator neutrality, and party empowerment by exploring three separate topics: barnacles, aristocracy and truth denial.

The first topic, barnacles, refers to the surprising and myriad number of ways that mediation has fully integrated (insinuated) itself into the U.S. litigation system. Institutionalization, some might argue, is "beautiful;" indeed, widespread, systematic use of mediation is often offered evidence of success. But I want to explore a different perspective on the same development-how institutionalization leads to rule exploitation and spawns its own unique litigation ironies. The second topic, aristocracy, refers to the documentation and …

Procedural Justice Beyond Borders: Mediation In Ghana, Jacqueline Nolan-Haley, James Kwasi Annor-Ohene

Faculty Scholarship

Ghana enacted comprehensive alternative dispute resolution legislation in 2010 with the specific goals of providing access to justice and promoting domestic and foreign direct investment (The Act). A significant aspect of the Act was the inclusion of customary arbitration and mediation. The focus of this Article is on mediation as this is the first time that mediation has been included in a statute in Ghana. The Act’s definition of mediation reflects an understanding of the mediation process based upon the western values of individual autonomy and party self-determination. These principles represent a significant departure from the more communal values of …

Differentiating Among International Investment Disputes, Julie A. Maupin

Faculty Scholarship

Can investor-state arbitration tribunals, which exercise jurisdiction over limited claims involving discrete parties, render awards that deliver individualized justice while also promoting systemic fairness, predictability and coherence? The answer, I argue, is a qualified yes – provided that the methods employed are tailored to the particular characteristics of each dispute. Using three well-known investment arbitrations as case studies, I illustrate that investor-state disputes vary widely in terms of their socio-legal, territorial, and political impacts. Significant variances along these three dimensions call for a differentiated approach to investor-state dispute resolution. I outline what such an approach might look like and analyze …

Supplying Compliance: Why And When The United States Complies With Wto Rulings, Rachel Brewster, Adam Chilton

Faculty Scholarship

In studies of compliance with international law, the focus is usually on the “demand side” – that is, how to increase the pressure on the state to comply. Less attention has been paid, however, to the consequences of the “supply side” – who within the state is responsible for the compliance. This Article is the first study to systematically address the issue of how different actors within the United States government alter national policy in response to the violations of international law. The Article does so by examining cases initiated under the World Trade Organization (WTO) Dispute Settlement Understanding (DSU). …

Finding Order In The Morass: The Three Real Justifications For Piercing The Corporate Veil, Jonathan Macey, Joshua Mitts

Faculty Scholarship

Few doctrines are more shrouded in mystery or litigated more often than piercing the corporate veil. We develop a new theoretical framework that posits that veil piercing is done to achieve three discrete public policy goals, each of which is consistent with economic efficiency: (1) achieving the purpose of an existing statute or regulation; (2) preventing shareholders from obtaining credit by misrepresentation; and (3) promoting the bankruptcy values of achieving the orderly, efficient resolution of a bankrupt's estate. We analyze the facts of veil-piercing cases to show how the outcomes are explained by our taxonomy. We demonstrate that a supposed …

A Reply To "Hollow Spaces", George A. Bermann, Jack J. Coe Jr., Christopher R. Drahozal, Catherine A. Rogers

Faculty Scholarship

This short essay responds to Chip Brower's thoughtful and meticulous critique of Tentative Draft No. 2 of the Restatement Third of the U.S. Law of International Commercial Arbitration. While we appreciate the concerns he raises, we disagree with the conclusions he draws both about the Restatement and the drafting process. We address here what we understand to be Professor Brower's major criticisms of the work.

The Thoughtful Integration Of Mediation Into Bilateral Investment Treaty Arbitration, Nancy A. Welsh, Andrea Kupfer Schneider

Faculty Scholarship

While the current system of investment treaty arbitration has definitely improved upon the “gunboat diplomacy” used at times to address disputes between states and foreign investors, there are signs that reform is needed: states and investors increasingly express concerns regarding the costs associated with the arbitration process, some states refuse to comply with arbitral awards, other states hesitate to sign new bilateral investment treaties, and citizens have begun to engage in popular unrest at the prospect of investment treaty arbitration. As a result, both investors and states are advocating for the use of mediation to supplement investor-state arbitration. This Article …

"Moving The Ball Forward" In Consumer And Employment Dispute Resolution: What Can Planning, Talking, Listening And Breaking Bread Together Accomplish?, Nancy A. Welsh, David B. Lipsky

Faculty Scholarship

Article Extract:

Mandatory pre-dispute arbitration has been a divisive issue for many years, particularly since the Supreme Court began enforcing the arbitration clauses that businesses and employers impose on consumers and employees, respectively, in contracts of adhesion. In 2009, the Dispute Resolution Section’s Council proposed to weigh in on this issue through the vehicle of an ABA House of Delegates resolution. The compromise position developed by the Section, expressing support for pre-dispute mandatory arbitration clauses provided they offer a meaningful opt-out, generated such a firestorm of opposition from both pro-arbitration and anti-arbitration advocates that the Council ultimately chose to abstain …

The Curious Case Of Transformative Dispute Resolution: An Unfortunate Marriage Of Intransigence, Exclusivity, And Hype, Robert J. Condlin

Faculty Scholarship

Why do proponents of Transformative Dispute Resolution (TDR) defend the Theory in such intransigent, exclusivist, and grandiose terms? TDR is a mature theory, and a relatively sophisticated one, and qualities of this sort usually go hand in hand with a balanced, refined, and well-modulated sense of self. But TDR proponents will have none of that. They make ambitious (some would say outlandish) assertions about the Theory’s capacity to develop moral and political character, reform deliberative government, and resolve ethno-political conflict, while simultaneously rejecting overtures from sympathetic outsiders to rein in the overstated aspects of these claims and craft a more …

Stopped At The Starting Gate: The Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg

Faculty Scholarship

Prepared for a symposium about the overuse of summary judgment in employment discrimination cases, this Article provides a grassroots empirical analysis of what is happening in equal pay cases on the front lines of the district courts. Analyzing a database of 500 federal district court decisions—both published and unpublished—that considered whether to grant summary judgment on an equal pay claim from 2000 to 2011, the review shows that dismissing equal pay claims at the summary judgment stage has become the modus operandi for most federal courts. Courts granted 68% of summary judgment motions in equal pay cases—meaning that only about …

Alternative Dispute Resolution And Public Confidence In The Judiciary: Chief Judge Bell's "Culture Of Conflict Resolution", Deborah Thompson Eisenberg, Rachel Wohl, Toby Treem Guerin

Faculty Scholarship

Chief Judge Robert M. Bell has been a visionary leader in the development of alternative dispute resolution (“ADR”). His innovations have made Maryland a model state for conflict resolution programs in the courts and, uniquely, beyond the courthouse doors in a broad range of arenas. This article provides an overview of the “culture of conflict resolution” he ignited in the judiciary and in communities.

Dispute Resolution Mechanisms For Intractable Medical Futility Disputes, Thaddeus Mason Pope

Faculty Scholarship

Medical futility disputes occur frequently in healthcare facilities across the United States. In this Article, I provide an overview of dispute resolution mechanisms through which healthcare providers can resolve these disputes. In Section I, identify three distinctive features of medical futility disputes. First, they usually concern life-sustaining medical treatment for patients in a hospital’s intensive care unit. Second, these patients typically lack decision making capacity. So, a surrogate must make treatment decisions on the patient’s behalf. Third, this surrogate and the patient’s physician disagree over the treatment plan. The surrogate wants to continue life-sustaining treatment. But the physician thinks that …

Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Dreaming Denationalized Law: Scholarship On Autonomous International Arbitration As Utopian Literature, Ralf Michaels

Faculty Scholarship

A completely denationalised law is of course a utopia. But it is a utopia not just in the broad sense of being unrealistic, at least for the present, and perhaps also for the future. No, it is a utopia in the very literal sense of the word. Recall what utopia means in Greek: no place. Delocalised arbitration, non-state law, is, quite literally, no-place law. It thus makes up a utopia in the central meaning of the term.

International Commercial Arbitration should be just about money. But its scholarship is full of invocations of dreams, visions, faith, utopia. These are not …

Lawyers And Mediation: Lessons From Mediator Stories, Sharon Press

Faculty Scholarship

In Stories Mediators Tell, Lela Love and Eric Galton have compiled a compelling anthology of stories about mediation. Not surprisingly, most of the stories involve a significant moment when something special happened for the parties. The author was reminded of presentations by Baruch Bush and Joe Folger in the early 1990's (around the time the first edition of The Promise of Mediation was published). They would ask mediators who attended their sessions to recount to a partner one of their memorable mediations. Inevitably, the stories were about transformative moments - of parties obtaining clarity for the first time - of …

When Bad Guys Are Wearing White Hats, Catherine A. Rogers

Faculty Scholarship

Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the Chevron case. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. The primary reason why the focus seems lopsided is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply an example of personal ethical lapse, but in part tied to larger reasons why ethical violations are an occupational hazard for plaintiffs’ counsel …