Dispute Resolution and Arbitration Commons^™

De Re And De Dicto, Robert E. Rodes

Journal Articles

Statements involving knowledge, intent, and the like may often be interpreted either de re (about a thing) or de dicto (about a statement). For instance, A knowingly took B's car can mean either A knowingly took a car that turned out to be B's, the de re interpretation, or A knowingly caused it to be the case that he took B's car, the de dicto interpretation. This paper takes up twelve cases whose outcome depends on which interpretation one gives to a governing principle. It suggests that since the two alternative interpretations are equally supported by the applicable language policy …

A Comment On The 1996 United Kingdom Arbitration Act, Thomas E. Carbonneau

Journal Articles

The 1996 United Kingdom Arbitration Act is a remarkable piece of legislation. It is a highly accessible statutory framework both from a linguistic and organizational standpoint. The 1996 Act represents a substantial improvement over prior English arbitration statutes,including the 1979 Act. The new legislation is comprehensive, thorough, cogent and coherent. In its presentation and content, it easily rivals both longstanding and recentlegislative enactments on arbitration. It is built upon a wealth of knowledge and expertise of arbitration law and practice, and embodies a very contemporary and integrated concept of arbitration. This commentary endeavors to highlight and appraise the most significant …

Debating The Proper Role Of National Law Under The New York Convention, Thomas E. Carbonneau

Journal Articles

One of the many consequences of the progressive development of globalization apparently has been to incite a vigorous debate among leading members of the international arbitral community about the role of national law in implementing the enforcement regime of the New York Arbitration Convention (Convention). The debate was provoked by federal court rulings in two recent cases: Chromalloy Aeroservices v. Arab Republic of Egypt (Chromalloy) and Alghanim & Sons v. Toys"R" Us (Toys "R" Us). Prior to these opinions, there appeared to have been an implicit consensus in the international community regarding the "anational"character of …

Law And Governance Affecting The Resolution Of Academic And Disciplinary Disputes At Scottish Universities: An American Perspective, Fernand N. Dutile

Journal Articles

At the entrance to St. Mary's College, a part of the University of St. Andrews in Scotland, one encounters the opening words of the Gospel of St. John: "In principio erat verbum." Eschewing the usual translation, students there irreverently render the passage thus: "The Principal has the last word." The existence of the position of Principal in a university and the substantial power of that official cause only part of the fascination experienced by the American observer of universities in Scotland. This article will assess, from an American perspective, the law and governance affecting the resolution of academic and disciplinary …

Regulating The Use Of Force In The 21st Century: The Continuing Importance Of State Autonomy, Mary Ellen O'Connell

Journal Articles

The most important, and certainly the most ambitious, modification of international law in this century has been the outlawing of the use of force to settle international disputes. The definitive prohibition on the use of force came with the adoption of the United Nations Charter and, in particular, Charter article 2(4).

For a short while, from 1991 until 1994, it appeared that a majority of Security Council members had re-interpreted the Charter's order of priorities. To some, it seemed that the Council had placed such values as human rights, self-determination, and even democracy above the value of peace through respect …

Arbitral Justice: The Demise Of Due Process In American Law, Thomas E. Carbonneau

Journal Articles

Arbitration consists of a process for resolving disputes in a final and binding manner outside the traditional court system. The rules that govern arbitration provide for flexible proceedings and do not require the strict application of legal rules.

Owing largely to the holdings of the U.S. Supreme Court, arbitration law and procedure have emerged from the obscurity of specialized practice and entered the adjudicatory mainstream.

In 1925, with the enactment of the U.S. Arbitration Act, the U.S. Congress declaredthe rehabilitation of arbitral justice and dispute resolution. These provisionsanticipated, in effect, the modern, world-wide legislative legitimization ofarbitration. Primarily because of the …

Does Mediation Systematically Disadvantage Women?, Margaret F. Brinig

Journal Articles

When state legislatures enabled spouses to obtain divorces without proving fault, one of the real achievements was lower transaction costs. Although the benefit of lower transaction costs for divorce is not completely noncontroversial, the relaxed proof requirements mean that lawyers do not necessarily have to be involved in divorce proceedings. The vast majority of marriage dissolutions involve written agreements between the parties. No-fault divorce also energized the divorce mediation movement.

Mediation is the least intrusive form of third-party involvement in a dispute. Whereas a judge or arbitrator imposes an outcome on the disputants, the mediator assists the parties in reaching …

Cartesian Logic And Frontier Politics: French And American Concepts Of Arbitrability, Thomas E. Carbonneau, Francois Janson

Journal Articles

This comparative essay represents an attempt to introduce a measure of counterpoise in a growing and much-heralded development in the world law of arbitration. Recent decisional law in the United States, France, and other countries have challenged the strategic significance of the concept of arbitrability in the legal regulation of arbitration. The essay seeks, first, to clarify the function of arbitrability in the law of arbitration and, second, to argue against its judicial deconstruction in either the international or domestic context. The key objective of the analysis is to demonstrate the vital role of demarcation that arbitrability plays between state …

Tax Liability And Inarbitrability In International Commercial Arbitration, Thomas E. Carbonneau, Andrew W. Sheldrick

Journal Articles

This essay engages in a narrow but crucial inquiry into the limits the inarbitrability defense may now impose upon the exercise of arbitral jurisdiction. While it is assumed that matters relating directly to status and capacity, testamentary dispositions, and title to immovable property fall outside the jurisdictional reach of international arbitrators, the question becomes whether any national regulatory laws, such as tax laws, benefit from the same status of inviolability.

Introduction To Symposium: Achieving Justice In Arbitration, Thomas E. Carbonneau

Journal Articles

This symposium attests to the depth of scholarship that now surrounds the law of arbitration and to arbitration's widening adjudicatory mission in matters international and domestic. Authored by senior and emerging scholars who share a commitment to professional excellence, the various contributions not only assure continuity in arbitral scholarship, but also underscore the growing sophistication of arbitral practice and illustrate the complexity of the relationship between arbitration and the legal process. This symposium represents an inquiry into the convergence and divergence of legal and arbitral adjudicatory values and what impact these similarities and differences might have upon the functioning and …

Arbitration And The U.S. Supreme Court: A Plea For Statutory Reform, Thomas E. Carbonneau

Journal Articles

This Article argues for stabilizing and preserving arbitration's necessary and valuable vocation in dispute resolution. It outlines the basic stages in the evolution of the American law of arbitration and studies the underlying motivation of each of its historical phases. It attributes vital significance to the legislative and decisional law developments that led to an early rehabilitation of arbitration in American law, beginning with the enactment of the United States Arbitration Act (FAA) in 1925 and continuing with the ratification of the New York Arbitration Convention and the elaboration of a "hospitable" federal caselaw. Eventually, these developments gave rise to …

The Reception Of Arbitration In United States Law, Thomas E. Carbonneau

Journal Articles

The willingness of any national legal system to endorse the process of arbitral adjudication can be measured by whether its governing statutory law and accompanying case law sustain the validity of arbitration agreements and limit judicial supervision of arbitral proceedings and awards - in effect, whether the laws of a nation establish a cooperative relationship between the courts and the arbitral process. On both scores, United States law on arbitration evinces a clear determination to support the process. The development of the law has given the framework of arbitral adjudication its necessary systemic autonomy.

America And Other National Variations On The Theme Of International Commercial Arbitration, Thomas E. Carbonneau

Journal Articles

Despite attempts at harmonization through treaty relations and State participation in multilateral organizations, the international arena is a composite of unsettled and unsettling structures. The volatility of global politics and discordant national perceptions of legitimate lawful conduct constitute a precarious, usually unsuitable, basis for an international rule of law. Domestic concepts of legality rarely serve as adequate instruments for molding the character of international relations. The irreducible principle of national sovereignty makes the world community resistant to the adoption of universal juridical standards and consecrates the fragmentation of national self-interest as the ultimate source of legality among nation-states. This article …

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

Journal Articles

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 …

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

Journal Articles

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 …

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

Journal Articles

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.

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

Journal Articles

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 …

For Reconciliation, Andrew W. Mcthenia, Thomas L. Shaffer

Journal Articles

The Alternative Dispute Resolution (“ADR”) movement has garnished much debate with scholars arguing on both sides—for or against—its further implementation into our adversarial system. This Article critiques the arguments against the movement focusing on Professor Owen Fiss’ work. From a theological reconciliation point of view, the Authors argue in favor of its further implementation because the ADR system promotes justice, community values, and the reconciliation of problems rather than resolution.

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

Journal Articles

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 …

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

Journal Articles

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.

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

Journal Articles

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 …