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Articles 121 - 150 of 1029
Full-Text Articles in Dispute Resolution and Arbitration
Third Party Arbitration Funding And Islamic Shari’A: Friends Not Foes, Mohamed Sweify
Third Party Arbitration Funding And Islamic Shari’A: Friends Not Foes, Mohamed Sweify
Journal of Dispute Resolution
International arbitration exacts considerable monetary costs. In response, new mechanisms have emerged to eliminate the risks of these costs. One of these mechanisms is Third-Party Funding (TPF). Claimants may consider TPF where they cannot afford the costs of arbitration or to spread their risks and take the claim costs off their corporate balance sheets. It enables the poorly funded party to pursue its claim on an equal footing with the well-funded one. Recently, TPF has acquired great attention that made it a revolutionary development in the practice of international arbitration. The practice of TPF has moved from common law jurisdictions …
The Future Of Arbitration Law?, Kristen M. Blankley
The Future Of Arbitration Law?, Kristen M. Blankley
Journal of Dispute Resolution
This Article provides an in-depth statistical analysis of statutory interpretation of the Supreme Court’s arbitration docket. This paper follows my work in Standing on Its Own Shoulders: The Supreme Court’s Statutory Interpretation of the Federal Arbitration Act. By looking at how the Court interprets the Federal Arbitration Act (FAA), this paper makes predictions about how arbitration cases might be resolved in the future. This paper considers the reliance on and use of fourteen tools of statutory interpretation over the Court’s 52 cases and 114 separate opinions interpreting the FAA through the end of 2021. By considering four crucial sub-categories of …
State Legislative Update, Katey Peters, Caleb Rutledge, Tim Richard, Joel Smith
State Legislative Update, Katey Peters, Caleb Rutledge, Tim Richard, Joel Smith
Journal of Dispute Resolution
The State Legislative Update is compiled and written annually by the Journal of Dispute Resolution’s Associate Members under the direction of the Associate Editor in Chief. It is designed to provide readers with a listing of pertinent legislation affecting the field of alternative dispute resolution (“ADR”) and a more detailed look at certain bills because of their importance or novelty within the field. This year’s State Legislative Update is especially important because the operations of state legislatures were altered due to the COVID-19 Pandemic.**
In Words Of The Pandemic, Arbitration Jurisprudence Needs A Ventilator, Bartholomew L. Mcleay
In Words Of The Pandemic, Arbitration Jurisprudence Needs A Ventilator, Bartholomew L. Mcleay
Journal of Dispute Resolution
The COVID-19 pandemic and arbitration share a few chronic symptoms. There are conflicting opinions about the standards for governing rulemaking, a debate on whether state policy or federal authority should control, and questions about the jurisdiction and neutrality of decisionmakers responsible for providing solutions. For those seeking review of an arbitration award today, like the current health environment, the situation is disconcerting. No herd immunity or PPE exists to protect challengers against the legal contagion spreading through the arbitration review process.
Abuse Just Out Of Frame: The Impact Of Online Dispute Resolution On Domestic Violence, Haley Benson
Abuse Just Out Of Frame: The Impact Of Online Dispute Resolution On Domestic Violence, Haley Benson
Journal of Dispute Resolution
“This is a[n] issue we didn’t have when we had live court.” It was a chilling day for prosecutor Deborah Davis when she discovered a victim of domestic violence was in the same apartment as her abuser during a session of Zoom court. In this case, the survivor had done the hardest part; she had made the decision to prosecute her abuser. As court began, Davis saw that her client had a similar virtual background to the alleged abuser and noticed that her client was looking away from the camera while answering questions. This prompted Davis to request that police …
Charting A Middle Course For Court-Connected Mediation, John Lande
Charting A Middle Course For Court-Connected Mediation, John Lande
Journal of Dispute Resolution
Court-connected mediation programs have produced important benefits for parties, practitioners, courts, and society generally. These programs have helped lawyers settle tough cases and generally manage their workload while their clients retain the power to litigate if they cannot reach an acceptable agreement. Courts have created and enforced rules to protect the integrity of process so that parties’ time and money in mediation are well spent.
Questions Of Arbitrability In The World: Comparing The Jurisprudence Of The United States And India, Henry Sivils
Questions Of Arbitrability In The World: Comparing The Jurisprudence Of The United States And India, Henry Sivils
Journal of Dispute Resolution
If a matter is not arbitrable, then it may not be arbitrated.2 Arbitrability, generally, refers to the authority that an arbitrator possesses to decide a matter.3 A challenge to that authority is considered a “question of arbitrability.”4 There are three types of questions of arbitrability: (1) substantive challenges that a dispute is not arbitrable under the terms of an arbitration clause; (2) the contention that, despite substantive arbitrability, procedural circumstances exist that prevent arbitration; and (3) “post-award attacks on an arbitrator’s decision.”5 Of those three, “whether a matter is arbitrable under a given arbitration clause” has had recent developments in …
Preserving The Relationship: Addressing The Covid Eviction Crisis Through Equitable Mediation, Cade Jones
Preserving The Relationship: Addressing The Covid Eviction Crisis Through Equitable Mediation, Cade Jones
Journal of Dispute Resolution
Not only has the coronavirus pandemic (“COVID-19”) has taken many lives, another substantial side effect are that many Americans are at risk of eviction because of the current COVID-19 pandemic. Since the pandemic began, more than 20 million renters have suffered job loss because of COVID-19. One particular aspect of daily life the pandemic has impacted is landlord-tenant relationships because tenants cannot make rent payments to the landlord which then leads to a landlord filing for bankruptcy. With tenants not making rent payments due to job loss, it has produced a detriment with landlord-tenant relationships that could produce a ripple …
Restorative Justice: An Alternative Dispute Resolution Approach To Criminal Behavior, Kayla Welch
Restorative Justice: An Alternative Dispute Resolution Approach To Criminal Behavior, Kayla Welch
Journal of Dispute Resolution
Beginning with the end of the Mass Prison Era in the late 1800s, Americans have looked for a better way to respond to crime and those who commit it. Since the Reformatory Era, the United States has swayed between punitive models based on either the Reformatory or Retributive theories. Despite the changes we have made, our criminal justice system suffers from long waiting periods for a trial, overburdened public defenders, overcrowded jails and prisons that often lead to unsafe conditions for the inmates and corrections officers, and many other problems.
The Effects Of The Global Financial Crisis On Employment Arbitration: Evidence From The Securities Industry Discrimination Complaints, Aibak Hafeez
Journal of Dispute Resolution
This paper examines how the Global Financial Crisis (GFC) 2008-09 influenced the usage and outcomes of discrimination arbitration cases for employee plaintiffs in the securities industry. It casts light on whether arbitration is able to serve as an appropriate and preferable workplace dispute resolution system during a macroeconomic crisis when aggrieved employees are most vulnerable and financially powerless. Macroeconomic recessionary periods are characterized with an increase in employment discrimination claims. As the labor market becomes slack during an economic recession, it becomes easier for firms to indulge in discriminatory behavior. In such a scenario, employee-plaintiffs desire an inexpensive, faster, and …
Acceptable Lies In Contract Negotiations, Stefanie Jung
Acceptable Lies In Contract Negotiations, Stefanie Jung
Journal of Dispute Resolution
It is well established that lying is a widespread phenomenon in business-to-business (“B2B”) contract negotiations. Some of the most prominent lies may be those about the subject matter of the contract. However, negotiators also frequently lie about other aspects like offers from other potential buyers or sellers, the availability of their product, the legal situation regarding contractual aspects, as well as their emotions and preferences.
Keeping The Elderly Quiet: The Trump Administration And The Reincarnation Of Mandatory Arbitration In Nursing Home Contracts, Katey Peters
Keeping The Elderly Quiet: The Trump Administration And The Reincarnation Of Mandatory Arbitration In Nursing Home Contracts, Katey Peters
Journal of Dispute Resolution
Mandatory arbitration provisions are the current standard in nursing home admission contracts, but the legal arguments surrounding their enforcement raise questions concerning the validity of these standard provisions. Arbitration provisions allow nursing homes to limit the transparency into their operations and keep victims, and their families, quiet and out of the public eye. This, in turn, limits the understanding of the shortcoming of current regulations and where new regulations may help. The current Coronavirus Disease 2019 (“COVID-19”) pandemic has brought to light some of these otherwise hidden regulatory issues surrounding nursing homes. As a result, several states have tried to …
Supplemental Environmental Projects’ Wild Ride Is A Call For Legislative Action To Protect A Valuable Negotiation Tool, Joel Smith
Journal of Dispute Resolution
In March 2020, the head of the Department of Justice’s Environmental Natural Resources Division (“DOJ ENRD”) issued a decision that fundamentally altered the federal government’s ability to address environmental harm. The decision removed a valuable tool from the negotiation toolbox that Department of Justice (“DOJ”) attorneys used for decades when negotiating settlements in civil enforcement of federal environmental protection laws. This policy change had the potential to significantly impact resolution of complex environmental disputes. In February 2021, the new Chief of the DOJ ENRD rescinded the 2020 memo in response to an executive order from newly elected President Joe Biden. …
Can Artificial Intelligence (“Ai”) Replace Human Arbitrators? Technological Concerns And Legal Implications, Gizem Halis Kasap
Can Artificial Intelligence (“Ai”) Replace Human Arbitrators? Technological Concerns And Legal Implications, Gizem Halis Kasap
Journal of Dispute Resolution
Artificial intelligence (“AI”) is no longer a precursor to the future—it is already here in the mainstream. Some countries, for example, have started to implement AI-based technologies into their adjudication processes. It has been reported that Estonia is currently developing an AI judge that can adjudicate small claims disputes of less than º7,000 and that China already has digital courts presided over by an AI judge. Together with the triggering effect of such futuristic news, AI studies that predict the outcome of litigation have stirred heated debate about the possible arrival of AI judges.
Digital Assets & License Protections In An Age That Denies Class Actions And Mandates Arbitration, Kevin Carr
Digital Assets & License Protections In An Age That Denies Class Actions And Mandates Arbitration, Kevin Carr
Journal of Dispute Resolution
The battle of star system B-R5RB is probably a conflict and place that you have never heard of, even though an estimated £300,000 worth of property damage and loss occurred due to an interstellar battle on July 27, 2014. Hundreds of competing rival ships were destroyed, with over 7,600 individuals taking part in one of the single largest property disputes of the 21st century. The conflict lasted approximately 21 hours and had ripple effects across an entire galaxy. If this sounds like fiction, I assure you, it is not. You have likely never heard of star system B-R5RB or the …
Clandestine Awards, Information Asymmetries, And Equality Of Arms In Investment Arbitration, Fernando Dias Simões
Clandestine Awards, Information Asymmetries, And Equality Of Arms In Investment Arbitration, Fernando Dias Simões
Journal of Dispute Resolution
Among the numerous criticisms leveled at investor-state arbitration over the years, it has almost become de rigueur to point out a lack of transparency. In this arena “transparency” refers to the extent to which the public may be aware of the existence of a dispute, have access to key arbitral documents, or attend oral hearings.
Disentangling Conflicts Of Laws In Eu And Member States’ Investment Agreements, Ottavio Quirico
Disentangling Conflicts Of Laws In Eu And Member States’ Investment Agreements, Ottavio Quirico
Journal of Dispute Resolution
The European Union (“EU”) is integrated into global markets via an open investment regime, which has fostered the development of wide economic relations. In 2019, the net investment outflow from EU Member States toward third countries totaled $42,6761 million, while inflow totaled $47,3196 million. To regulate investment disparities since the establishment of the common market in the 1950s, EU Member States have concluded about 1400 multilateral investment treaties (“MITs”) and bilateral investment treaties (“BITs”) with third countries. EU Member States have also negotiated around 190 MITs and BITs inter se, or intra-EU investment agreements. Since the adoption of the Lisbon …
Another One Bites The Dust: How Jevic Curtailed Creditor Rights To Negotiate In And Out Of Bankruptcy, Jaden Banks
Another One Bites The Dust: How Jevic Curtailed Creditor Rights To Negotiate In And Out Of Bankruptcy, Jaden Banks
Journal of Dispute Resolution
Gone are the days of bankruptcy where the insolvent debtor faced an ignominious execution or was sentenced to lifelong imprisonment to satisfy a creditor's demand for their pound of flesh. The modern U.S. Bankruptcy System has moved beyond its focus on draconian punishment, instead, its focus is on fairness to the debtor and distribution of assets among creditors. With recent Supreme Court cases such as Jevic, significant concerns have been raised about the effectiveness of negotiated agreements, related to, but outside of bankruptcy. These concerns center on the reduction in the fairness of certain debtor tools namely prepackaged and cramdown …
Setting The Table For Mediation Success: Supporting Disputants To Arrive Prepared, Timothy Hedeen, Vittorio Indovina, Joanne Donner, Claudia Stura
Setting The Table For Mediation Success: Supporting Disputants To Arrive Prepared, Timothy Hedeen, Vittorio Indovina, Joanne Donner, Claudia Stura
Journal of Dispute Resolution
Consider the following two scenarios. Tom Jones sued his neighbor over a dispute they had regarding the boundaries of their abutting properties. Within a week of filing the suit, he received notice that a mediation had been scheduled for their case. Three weeks later he arrived at the appointed place and time of the mediation where he found his neighbor, his neighbor's attorney, and a mediator. After brief introductions, they were invited to take their seats and were provided a short overview of mediation, a process that was new and unfamiliar to Tom Jones. Two hours later, he left in …
Forgotten Heroes: The Unacceptable Results Of Military Administrative Separations, Bryan Oliver
Forgotten Heroes: The Unacceptable Results Of Military Administrative Separations, Bryan Oliver
Journal of Dispute Resolution
The United States Military is charged with protecting the interests of the United States against foreign actors that seek to undermine our safety, values, and standing as the world's leading democratic power. The performance of this duty is often carried out without a ripple in the fabric of the average citizens' daily life. The adage "no news is good news" describes the way the civilian population thinks about how the military functions. However, the civilian population of the United States should be aware of situations where service-members are not treated fairly by the military's processes.