Dispute Resolution and Arbitration Commons^™

Transnational Law-Making: Assessing The Impact Of The Vienna Convention And The Viability Of Arbitral Adjudication, Thomas E. Carbonneau

Faculty Scholarship

Questions concerning the future orientation of the process are more pressing and demand a definition of the international mission and role of arbitral adjudication. Nations share the perception that national economies are no longer autonomous, that they must function within a larger global framework. The question then becomes not whether a uniform international law of sales is needed, but rather how it is to be achieved. The transnational preeminence that arbitration has gained as a remedial mechanism makes it a likely vehicle for elaborating a common law of international contracts.

This article assesses the impact of the Vienna Convention upon …

A Consideration Of Alternatives To Divorce Litigation, Thomas E. Carbonneau

Faculty Scholarship

This article argues for the need to inform divorce proceedings with a sense of the human reality of matrimonial breakdown. Part one assesses the adequacy of the existing adjudicatory approach to divorce by focusing upon the hiatus between the legal approach to divorce and the emotional content of divorce disputes. Part two lays the foundation for constructive change, providing a statistical portrait of divorce in contemporary America. Part four discusses mediation and suggests that it is a more viable alternative mechanism to divorce litigation. Part five discusses the implementation of a judicial arbitration structure.

The Exuberant Pathway To Quixiotic Internationalism: Assessing The Folly Of Mitsubishi, Thomas E. Carbonneau

Faculty Scholarship

The writing on international commercial arbitration often is replete with statements affirming the necessity and advocating the progression of the institution. Indeed, the transnational consensus on commercial arbitration is exceptional - a rare example of viable cohesion in the fragmented arena of international affairs. The unifying spirit of the 1958 New York Arbitration Convention, the uniformity of approach among national courts to the implementation of the Convention, and national legislation supportive of the emerging international consensus on arbitration attest to a willingness to eradicate parochial concerns, to respond to felt needs, and to achieve functional international cooperation.

The United States …

The Iran-United States Claims Tribunal 1981-1983, Lori Fisler Damrosch

Faculty Scholarship

It is in the nature of publishing schedules that this volume of papers presented at a colloquium in April of 1983 was printed in 1984, distributed in 1985, and reviewed in an issue to appear in early 1986. Those who have actively followed the work of the Iran-United States Claims Tribunal are necessarily familiar with a large portion of the contents of this book. Not only were three of the seven chapters previously published elsewhere, but much of the descriptive and some of the analytical material throughout the book has been dealt with in a more timely fashion in the …

Rendering Arbitral Awards With Reasons: The Elaboration Of Common Law Of International Transactions, Thomas E. Carbonneau

Faculty Scholarship

With the growth of international trade, arbitration has emerged as the preferred remedy for resolving private international commercial disputes. In fact, among major Western legal systems such as those of England, the United States and France, statutory and decisional law developments indicate a nearly complete acceptance of international arbitral adjudication. This recognition of arbitral procedure and the enforcement of awards, which are given uniform legal recognition and enforcement by domestic legal systems, either as provisions in international conventions or as principles of national statutory or decisional law. These rules, in effect, represent an international consensus on arbitration and constitute a …

Role Of A National Legal Information Center In The Access To Justice, The, Robert J. Nissenbaum

Faculty Scholarship

The author reviews the nature of disputes and mechanisms for dispute

Arbitral Adjudication: A Comparative Assessment Of Its Remedial And Substantive Status In Transnational Commerce, Thomas E. Carbonneau

Faculty Scholarship

With the growth of international trade, arbitration has emerged as the preferred remedy for disputes in private international commerce. Its adjudicatory features respond well to the sui generis dispute resolution needs of international commercial contracts. Most significantly, an arbitration agreement acts as an elaborate choice-of-forum clause. It allows the parties to satisfy their need for a predictable and effective dispute resolution process by creating a more realistic and workable framework that supersedes the fundamentally parochial alternative proffered by national legal systems. The party autonomy principle that underlies arbitration gives the contracting parties the power to fashion a remedial process tailored …

Arbitration Of International Contract Disputes, William W. Park

Faculty Scholarship

International commercial arbitration has been the victim of its own success. Arbitration is often the only dispute resolution process acceptable in business contexts where parties from different countries have rejected recourse to each other's legal system at the outset of the contractual relationship. For example, when a Swedish shipyard contracts to build tankers for an agency of the Libyan government, the Swedes are unlikely to relish the prospect of appearing before Libyan courts, and the Libyans may view submission to the courts of Sweden (or of another industrialized Western nation) as an affront to Libyan national sovereignty. Neither the Swedish …

Commercial Arbitration In The Eighteenth Century: Searching For The Transformation Of American Law, Eben Moglen

Faculty Scholarship

Some recent writing on the history of American law, notably that of Morton Horwitz, has observed a "transformation" in the early years of the nineteenth century as a new legal culture replaced the pre-commercial regime and altered rules of law in favor of the commercially active founders of industrial capitalism. In the course of this transformation, Horwitz argues, merchants and lawyers identified possible grounds for an "alliance," in which the lawyers gained social status and a monopoly in adjudicative institutions, while the commercial classes gained a system of law which subsidized their interests at the expense of other classes in …

The Reform Of The French Procedural Law On Arbitration: An Analytical Commentary On The Decree Of May 14, 1980, Thomas E. Carbonneau

Faculty Scholarship

Prior to May 1980, the French domestic law on arbitration had not been subject to any substantial legislative reform since the early nineteenth century. The procedural part of that law, which contained practically all of the French legislative provisions applying to arbitration, was out of date and in need of reconsideration.

Despite the considerable French procedural law reforms enacted in 1975, articles 1005 through 1028 of the Nouveau Code de procédure civile had not been revised to any significant extent since the enactment of the Code de procédure civile in 1806.

The basic intention of the new legislative text is …

The Elaboration Of A French Court Doctrine On International Commercial Arbitration: A Study In Liberal Civilian Judicial Creativity, Thomas E. Carbonneau

Faculty Scholarship

The task of the present article is to examine the historical evolution and current status of the French judicial doctrine on international commercial arbitration. It endeavors to compare the international doctrine with the French domestic law on arbitration and to illustrate briefly its conformity to the provisions of the international conventions on arbitration to which France is a party. Its chief design, however, is to concentrate upon the court decisions themselves, underscoring their progressive quality and pointing to their systemic implications.

Retaliation Or Arbitration – Or Both: The 1978 United States-France Aviation Dispute, Lori Fisler Damrosch

Faculty Scholarship

It began as a very small dispute. Pan American World Airways planned to introduce a service from San Francisco to Paris with a stop in London, using a Boeing 747 aircraft from San Francisco to London and a smaller Boeing 727 aircraft from London to Paris. The change to a smaller plane would have enabled the most efficient and economic use of Pan Am's fleet. In aviation as in railroad terminology, a change along a route to equipment of a different size is called a "change of gauge."

In accordance with French law, Pan Am filed a schedule on February …

Contractual Agreements To Arbitrate Disputes: Waiver Of The Right To Compel Arbitration, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

Political Aspects Of Public Sector Interest Arbitration, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

The Division Of Legal Labor In Rural Haiti, Pnina Lahav

Faculty Scholarship

This paper explores the institutional facilities available to Haitian peasants for the settlement of their disputes. More specifically, it compares the institution of the Chef de Section - the lowest administrative appointee in the Haitian countryside and the Justice of the Peace - the lowest ranking judicial institution provided by the Haitian legal system. The paper further advances the hypothesis that at the present time there is a shift in the division of labor between the two institutions, in favor of the Justice of the Peace, and that this shift may be attributed to processes of social differentiation currently detectable …

Arbitration Of Public Sector Labor Disputes: The Nevada Experiment, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

Public Employee Bargaining In California: The Meyers-Milias-Brown Act In The Courts, Joseph R. Grodin

Faculty Scholarship

No abstract provided.