Open Access. Powered by Scholars. Published by Universities.®
Dispute Resolution and Arbitration Commons™
Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- International Law (5)
- Judges (5)
- Labor and Employment Law (5)
- Legal Education (4)
- Family Law (3)
-
- Insurance Law (3)
- Commercial Law (2)
- Health Law and Policy (2)
- Agriculture Law (1)
- Business Organizations Law (1)
- Communications Law (1)
- Contracts (1)
- Education Law (1)
- Elder Law (1)
- Entertainment, Arts, and Sports Law (1)
- Intellectual Property Law (1)
- Jurisprudence (1)
- Law and Economics (1)
- Securities Law (1)
- Water Law (1)
- Keyword
-
- Arbitration (144)
- Mediation (99)
- Alternative dispute resolution (43)
- Dispute resolution (39)
- Adr (35)
-
- International (30)
- Legal education (28)
- Arbitration act (23)
- Arbitration agreements (23)
- Negotiation (23)
- Litigation (22)
- FAA (19)
- Uaa (19)
- Uniform arbitration act (19)
- Settlement (17)
- Employment (15)
- Federal arbitration act (15)
- Legislation (13)
- Mediator (13)
- Confidentiality (12)
- ADR (11)
- Contract (11)
- Disputes (11)
- Judicial review (11)
- Uniform mediation act (11)
- Union (11)
- Arbitrator (10)
- Conflict (10)
- Conflict resolution (10)
- Damages (10)
- Publication Year
Articles 361 - 390 of 1013
Full-Text Articles in Dispute Resolution and Arbitration
Unconscionable Construction: How The Ninth Circuit Evades The Faa By Severing Arbitration Agreements As Unconscionable Note, Daniel B. Mitchell
Unconscionable Construction: How The Ninth Circuit Evades The Faa By Severing Arbitration Agreements As Unconscionable Note, Daniel B. Mitchell
Journal of Dispute Resolution
Bridge Fund Capital Corp. v. FastBucks Franchise Corp. illustrates a recent manifestation of an ongoing judicial hostility to arbitration. As the Supreme Court has developed its FAA jurisprudence to limit the severance of arbitration agreements, many lower courts have continued to develop legal justifications to circumvent these restrictions. The FAA's savings clause does afford some latitude for severance of arbitration agreements, but the Supreme Court has not yet defined the limits of the savings clause, nor whether the general contract defense and their justifications are sufficient to supersede FAA policy. Bridge Fund shows how the doctrine of unconscionability it being …
New Use Of The Doctrine Of Unconscionability To Invalidate Arbitration Agreements In Consumer Contracts, The Note, Valerie Dixon
New Use Of The Doctrine Of Unconscionability To Invalidate Arbitration Agreements In Consumer Contracts, The Note, Valerie Dixon
Journal of Dispute Resolution
Manfredi v. Blue Cross and Blue Shield suggests that this old judicial hostility is alive and well in Missouri jurisprudence. In an effort to level the playing field between parties of unequal bargaining power, Missouri courts have applied the unconscionability doctrine as a way to sidestep the United States Supreme Court's asserted policy favoring arbitration over litigation.7 This note considers the new approach of Missouri courts in invalidating arbitration agreements through the doctrine of unconscionability in the consumer context.
New York Convention And The American Federal System, The Symposium, Christopher R. Drahozal
New York Convention And The American Federal System, The Symposium, Christopher R. Drahozal
Journal of Dispute Resolution
Whether state law can play a broader role in international arbitration matters in the United States depends on the extent to which the New York Convention and Chapter Two of the FAA (which implements the Convention) preempt state arbitration law. This article undertakes a preliminary analysis of that broad topic by examining several legal questions central to determining the preemptive effect of the New York Convention: (1) What effect, if any, does the federal-state clause (Article XI) have on U.S. obligations under the Convention? (2) To what extent does Chapter Two of the FAA apply in state court? and (3) …
If We Could, Then So Can You: The Seventh Circuit Resurrects Its Judge Versus Arbitrator Analogy To Reinstate A Repeat Arbitrator Note, Collin Koenig
If We Could, Then So Can You: The Seventh Circuit Resurrects Its Judge Versus Arbitrator Analogy To Reinstate A Repeat Arbitrator Note, Collin Koenig
Journal of Dispute Resolution
Arbitration clauses provide a method for companies to settle business disputes without expending the amount of time and resources required in judicial proceedings. When an arbitration clause is invoked, a neutral third party takes on the role of adjudicator, and the parties defer to the unbiased decision of that neutral. Sometimes what is "unbiased" becomes more uncertain when parties contract for the right to appoint their own arbitrators. Trustmark Ins. Co. v. John Hancock Life Ins. Co. stands for the principle that the Seventh Circuit will relax the impartiality standard to which they hold party-appointed arbitrators, especially compared to the …
Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong
Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong
Journal of Dispute Resolution
In many ways, the relationship between litigation and international commercial arbitration is a curious one, with experts adopting diametrically opposed positions on how the two procedures do or should interact. For example, some people take the view that international commercial arbitration is a uniquely self-contained dispute resolution mechanism that proceeds entirely independent of state control.'
Convergence And Divergence In International Dispute Resolution Symposium, Peter Rutledge
Convergence And Divergence In International Dispute Resolution Symposium, Peter Rutledge
Journal of Dispute Resolution
This symposium submission draws heavily on law and economic literature to develop its thesis. Part I lays out the literature behind the parties' choice to opt for arbitration. It also builds upon that literature by attempting to sketch out some preliminary reasons why parties might opt for arbitration over another form of dispute resolution. Part II charts how, along various axes, arbitration has begun to converge with litigation - thereby depriving it of a comparative advantage that it once enjoyed - due to innovations in arbitration and innovations in the field of international civil litigation. In brief, the traditional advantages …
Introduction To The Court Of Arbitration For Sport (Cas) & The Role Of National Courts In International Sports Disputes, An Symposium, Louise Reilly
Introduction To The Court Of Arbitration For Sport (Cas) & The Role Of National Courts In International Sports Disputes, An Symposium, Louise Reilly
Journal of Dispute Resolution
The founding purpose of the Court of Arbitration for Sport (CAS) was to take international sports disputes out of national courts and provide a highly specialized forum where those disputes could be heard and decided, quickly and inexpensively, according to a flexible procedure. Since its inception, CAS has gained the recognition and trust of the international sports community and today, is the last instance of appeal for parties involved in a wide-range of sports-related disputes, including those related to all Olympic sports and many non-Olympic sports, football disputes, doping infractions and international commercial contracts. CAS has come to provide sportsmen …
United States Supreme Court And Class Arbitration: A Tragedy Of Errors, The Symposium, Gary Born, Claudio Salas
United States Supreme Court And Class Arbitration: A Tragedy Of Errors, The Symposium, Gary Born, Claudio Salas
Journal of Dispute Resolution
This Essay describes and critiques the U.S. Supreme Court's recent misadventures with class arbitration. First, the Essay reviews the origins and rise of class arbitration under the FAA, particularly following the Supreme Court's Bazzle decision. In Part II, the Essay discusses application of the unconscionability doctrine to class action waivers, under the California courts' Discover Bank doctrine. In Part III, the Essay recounts the Supreme Court's retrenchment from class arbitration in Stolt-Nielsen and, more fully, in Concepcion. It also critiques the Court's apparent analysis in Concepcion and offers an alternative analysis for the Concepcion result that is more consistent with …
Court Intervention In International Arbitration: The Case For Compulsory Judicial Internationalism Symposium, Frederic Bachand
Court Intervention In International Arbitration: The Case For Compulsory Judicial Internationalism Symposium, Frederic Bachand
Journal of Dispute Resolution
Part I sets out in more detail the proposed interpretive rule. It does so by explaining why the relevant international normative context should always matter when courts are called upon to resolve questions of international arbitration law to which local sources provide no clear answers. In Part H, I address the issue of how precisely that context ought to bear upon the interpretive process. In doing so, I highlight some important distinctions regarding how that context should bear upon the courts' reasoning depending on whether the issue in dispute is governed by uniform law instruments-such as the New York Convention …
Concerning Preemption: Upholding Consent Under The Federal Arbitration Act Note, Shane Blank
Concerning Preemption: Upholding Consent Under The Federal Arbitration Act Note, Shane Blank
Journal of Dispute Resolution
AT&T Mobility LLC v. Concepcion represents the latest failed effort by a state to assert some level of control over consensual arbitration agreements. It also represents an affirmation by the U.S. Supreme Court of a long-standing notion that arbitration agreements, standing on equal footing with other contracts, must be enforced according to their terms-holding consent to be the paramount consideration in judicial analysis. This note will examine the lengthy history of the FAA's preemptive power under the Supremacy Clause, explore the U.S. Supreme Court's time-honored rationale for choosing when to exercise its preemptive powers to invalidate state law, and evaluate …
Ethical Problems In Class Arbitration, Andrew Powell, Richard A. Bales
Ethical Problems In Class Arbitration, Andrew Powell, Richard A. Bales
Journal of Dispute Resolution
This article examines two significant conflicts of interest that arise in class arbitration in six parts. Part II provides background on the recent evolution of class arbitration, explaining how the Supreme Court had decided several cases involving class arbitration but has not explicitly ruled that class actions are either permitted or forbidden. Part III discusses the conflicts of interest that could arise at the beginning of class arbitration. Part IV discusses conflicts of interest that arise at the end of class arbitration. Part V of this article argues that if and when Congress amends the Federal Arbitration Act to statutorily …
Missouri Courts Side With Employees Against The Eighth Circuit: Continued Employment Does Not Constitute Acceptance And Consideration For Mandatory Arbitration Agreements: Frye V. Speedway Chevrolet Cadillac, Laura Browne
Journal of Dispute Resolution
The question of whether continued employment constitutes acceptance and consideration for an employment contract, particularly applied to mandatory arbitration clauses, has split the authorities who decide on cases arising out of Missouri. The United States Court of Appeals for the Eighth Circuit, while purporting to apply Missouri law in cases arising out of Missouri, holds that an employee who continues to work for his or her employer after an arbitration program has been implemented is bound by it by the virtue of his or her continued employment. Missouri courts, however, disagree with this interpretation of Missouri law and held in …
No Signature Needed: The Supreme Court Of California Settles Precedent And Furthers The Goals Of The Medical Injury Compensation Reform Act: Ruiz V. Podolsky, Meghan L. Travis
No Signature Needed: The Supreme Court Of California Settles Precedent And Furthers The Goals Of The Medical Injury Compensation Reform Act: Ruiz V. Podolsky, Meghan L. Travis
Journal of Dispute Resolution
In Ruiz v. Podolsky,2 the California Supreme Court ended the strife surrounding wrongful death claims when Rafael Ruiz (Ruiz), the decedent, executed a binding arbitration agreement.3 The court was able to soundly support its decision on applicable legislation, case law and public policy after weaving its way through a turbulent mish-mash of contradictory precedent. This note will discuss: (1) California's attempt to decrease the cost of medical malpractice claims, (2) the ramifications of Ruiz's allowing arbitration agreements to bind heirs, and (3) the differing approaches states have taken toward the application of binding arbitration agreements to beneficiaries
Regulating Mediator Qualifications In The 2008 Eu Mediation Directive: The Need For A Supranational Standard, Ashley Feasley
Regulating Mediator Qualifications In The 2008 Eu Mediation Directive: The Need For A Supranational Standard, Ashley Feasley
Journal of Dispute Resolution
This paper will illustrate how the regulation of mediator training and the implementation of minimum qualification levels will help the Directive have a longterm impact in six parts. Part II will briefly examine mediation in an international law context. Part III will discuss the history of the Directive and pertinent provisions of the Directive. Part IV will address the recent situation in Italy, with a particular focus on the opposition to Legislative Decree 28, mandatory mediation, and the perceived lack of mediator qualifications. Part V will examine the current mediator trainings and qualification standards that are required in other selected …
Pleading For Justice: The Availability Of Plea Bargaining As A Method Of Alternative Resolution At The International Criminal Court, Kate Kovarovic
Pleading For Justice: The Availability Of Plea Bargaining As A Method Of Alternative Resolution At The International Criminal Court, Kate Kovarovic
Journal of Dispute Resolution
This article serves to illustrate how the implementation of a plea bargaining process at the ICC would enable the Court to achieve both peace and justice. Part II begins by analyzing the history of plea bargaining in the international criminal arena, using the ICTY and the ICTR as models of the successful incorporation of plea bargaining into a court's adjudication process. Part III transfers these advantages to the ICC by examining how the plea bargaining process would advance the Court's goals of achieving peace and justice. Part IV moves from the theoretical to the practical by analyzing how the principles …
Are We Paper Tigers - The Limited Procedural Power Of Arbitrators Under Chinese Law, Chi Manjiao
Are We Paper Tigers - The Limited Procedural Power Of Arbitrators Under Chinese Law, Chi Manjiao
Journal of Dispute Resolution
This article explores the extent arbitrators exercise procedural power under Chinese law in six parts. Part II briefly provides background information for the legal framework of Chinese arbitration law and the "dual-track system" in the Chinese arbitration regime. The ensuing parts deal with the three major aspects of arbitrators' procedural power respectively: Part III discusses the power of making jurisdictional decisions, Part IV analyzes the power of making applicable law decisions, and Part V explores the power of issuing interim measures. Part VI concludes that in all three aspects, the procedural power of arbitrators under Chinese law is heavily restricted …
In The Shadow Of Soft Law: The Handling Of Corporate Social Responsibility Disputes Under The Oecd Guidelines For Multinational Enterprises, Leyla Davarnejad
In The Shadow Of Soft Law: The Handling Of Corporate Social Responsibility Disputes Under The Oecd Guidelines For Multinational Enterprises, Leyla Davarnejad
Journal of Dispute Resolution
This socio-legal study undertakes a comprehensive analysis of the various practices NCPs apply to solve CSR disputes during specific instances. It does so in four parts, starting with an outline of the legal background of the CSR debate and movement in Part II. Part Ill examines the construction and content of the Guidelines. Also, Part III explores the soft law nature debate and how it shapes the NCPs' commitment and implementation of the Guidelines. In Part IV, the empirical findings of this study are presented to illuminate how the soft law nature of the Guidelines shapes the NCPs' commitment and …
State Legislative Update , Benjamin Angulo, Daniel J. Romine, Matthew Schacht
State Legislative Update , Benjamin Angulo, Daniel J. Romine, Matthew Schacht
Journal of Dispute Resolution
This analysis will examine the sample of bills in four parts. Because some of the proposed state bills are silent on whether their respective bills are reserved for non-commercial matters, Part II examines whether the bills apply to businesses that are parties to business-to-business international commercial contracts. Part III assesses the bills' definition of foreign law to better understand the scope of the anti-foreign law bans. Because each anti-foreign law bill initially defines foreign law as one that is created outside the U.S., Part III analyzes whether the bills' foreign law definitions include international organizations and tribunals. It is important …
Foreigners Beware: Exploring The Tension Between Saudi Arabian And Western International Commercial Arbitration Practices: In Re Aramco Services Co., Whitney Hampton
Foreigners Beware: Exploring The Tension Between Saudi Arabian And Western International Commercial Arbitration Practices: In Re Aramco Services Co., Whitney Hampton
Journal of Dispute Resolution
Increasing globalization in the Middle East has resulted in greater commercial interaction between Saudi Arabia and the West. This, in turn, has led to a resurgence of international arbitration agreements between Saudi Arabian businesses and their Western counterparts. However, the strong religious undertones in Saudi Arabian law have given rise to tension with the West, and the United States, in particular. In re Aramco Services is but a tiny piece in a very large puzzle. While the opinion is short, it serves as an indication, or perhaps a reminder, of the larger implications at work. This note will discuss these …
Consent Is The Key To Compel: The Eighth Circuit Properly Denies A Motion To Compel A Non-Signatory To Arbitrate United States Court Of Appeals, Eighth Circuit: Bank Of America V. Umb Financial Services, Tom Swoboda
Journal of Dispute Resolution
This Note addresses a recent Eighth Circuit decision concerning the issue of whether or not to compel arbitration between a non-signatory plaintiff and a defendant who desires to arbitrate the plaintiff's claims.' After examining a recent Supreme Court decision in which the Court articulated certain principles of state contract law that allow a court to compel arbitration by or against nonparties to a contract, this Note will explore precedent in Missouri that demonstrates a stringent process in order to compel non-signatories to arbitration. The various federal circuit court treatments of this commonly litigated issue and its underlying split on the …
Dispensing Injustice: Stolt-Nielsen And Its Implications - Stolt-Nielsen S.A. V. Animalfeeds Int'l Corp., Nicholas Goodrich
Dispensing Injustice: Stolt-Nielsen And Its Implications - Stolt-Nielsen S.A. V. Animalfeeds Int'l Corp., Nicholas Goodrich
Journal of Dispute Resolution
The immediate effect of the holding was to allow a group of corporate defendants to use their superior bargaining position in the contracting process to effectively shield themselves from liability. Although Stolt-Nielsen involved business entities, the case also has implications in the consumer context. If the Court were to extend the reasoning of the case to disputes involving adhesion contracts, corporations would enjoy this immunity in the context of consumer disputes. Far from a hypothetical exercise in the reaches of Supreme Court jurisprudence, the Court is expected to decide this very issue during the 2010 term. In light of these …
Deliberative Look At Alternative Dispute Resolution And The Rule Of Law, A, Peter Muhlberger
Deliberative Look At Alternative Dispute Resolution And The Rule Of Law, A, Peter Muhlberger
Journal of Dispute Resolution
This paper critiques the foundations of Aragaki's analysis, but also gives credit on the importance of dealing with people as less than fully rational. The critique suggests, again, a deep commonality between DD and ADR and potential improvements to both approaches. True collaboration between these approaches, however, requires some re-theorizing of both, including a reconsideration of rationality itself. This paper will sketch some ways in which this might be achieved and, in particular, how DD theory and research may prove helpful for ADR.
Alternative Dispute Resolution And The Rule Of Law In International Development Cooperation, James Michel
Alternative Dispute Resolution And The Rule Of Law In International Development Cooperation, James Michel
Journal of Dispute Resolution
This paper briefly reviews the concept of development and related international cooperation. It then examines how the rule of law has been addressed in development programs and offers some thoughts about the contribution of ADR for advancing the rule of law and, in turn, contributing to human security, wellbeing, and dignity.
Family, The Market, And Adr, The, Amy J. Cohen
Family, The Market, And Adr, The, Amy J. Cohen
Journal of Dispute Resolution
This Article proceeds in three Parts. I begin by briefly summarizing what I will refer to as separate spheres ideology-the idea that our normative understandings of the family and the market are constructed in contradistinction to one another. I then show how this conceptual distinction between the family and the market shaped the development of alternative dispute processing during two periods of time. The first period, which I introduce to frame the second, examines how dispute processing reformers-beginning during the Progressive era and continuing to the 1930s-distinguished alternative forums for family disputes from alternative forums for commercial ones. In Part …
Access To Justice And Alternative Dispute Resolution, William Davis, Helga Turku
Access To Justice And Alternative Dispute Resolution, William Davis, Helga Turku
Journal of Dispute Resolution
This article reviews access to justice both theoretically and in practice. Second, it highlights some of the challenges and successes of implementing access to justice projects. Finally, it discusses alternative dispute resolution (ADR) reforms in the developing world as one important element of access to justice.
Procedural Justice And The Rule Of Law: Fostering Legitimacy In Alternative Dispute Resolution, Rebecca Hollander-Blumoff, Tom R. Tyler
Procedural Justice And The Rule Of Law: Fostering Legitimacy In Alternative Dispute Resolution, Rebecca Hollander-Blumoff, Tom R. Tyler
Journal of Dispute Resolution
In Part II, we provide background on the psychology of procedural justice. Then, because the term rule of law has been used so widely and in so many different ways, we explain its various meanings and go on to draw connections between the elements of procedural justice and the rule of law, highlighting both the similarities and distinctions between the two principles. We then marshal evidence in support of the critical role that procedural justice and rule of law values play in fostering perceptions of legitimacy. Part III explores the links among procedural justice, rule of law, and specific ADR …
Adr And Transitional Justice As Reconstructing The Rule Of Law, Michal Alberstein
Adr And Transitional Justice As Reconstructing The Rule Of Law, Michal Alberstein
Journal of Dispute Resolution
This paper addresses the role of ADR in reconstructing the rule of law following the critique this idea received during the 20th century, and exemplifies this role through reference to another alternative movement in law-The Transitional Justice movement. In contrast to efforts to reconcile the notion of the rule of law with ADR, or to demarcate the proper interaction between these social institutions in achieving justice, this paper argues for a deeper connection between the two notions: After briefly analyzing the intricate meanings of the rule of law notion through history and its relation to ADR, the paper continues to …