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Dispute Resolution and Arbitration Commons™
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Articles 1 - 20 of 20
Full-Text Articles in Dispute Resolution and Arbitration
A Call For Evidence-Based Research In Adr, Methura Sinnadurai, Benjamin Vanderwindt, Patricia Mcmahon, Trevor C. W. Farrow
A Call For Evidence-Based Research In Adr, Methura Sinnadurai, Benjamin Vanderwindt, Patricia Mcmahon, Trevor C. W. Farrow
Articles & Book Chapters
In any three-year period, almost half the adult population in Canada will experience at least one justiciable civil or family problem. Few, however, will have the resources to resolve their legal problems, thus highlighting longstanding barriers that make access to justice such a pressing issue in Canada. Among many global justice initiatives, a prominent call to action is Goal 16 of the 2030 United Nations Sustainable Development Goals, which commits nations to work towards ensuring equal access to justice for all by 2030. Although there is no single strategy to achieve this, evidence-based practices in all areas of civil and …
Selected Dispute Resolution Bibliography, Shannon Moldaver, Trevor C. W. Farrow
Selected Dispute Resolution Bibliography, Shannon Moldaver, Trevor C. W. Farrow
Articles & Book Chapters
Included in this bibliography is a selected set of dispute resolution and related professional responsibility and access to justice readings, primarily (although not exclusively) with a general negotiation and mediation focus. This bibliography is not comprehensive. Rather – given the breadth of dispute resolution, legal process, professional responsibility, and access to justice materials available – this bibliography includes a brief sampling of available readings that may be of interest to those studying, practicing, or thinking about dispute resolution.
Who Has Benefited Financially From Investment Treaty Arbitration? An Evaluation Of The Size And Wealth Of Claimants, Gus Van Harten
Who Has Benefited Financially From Investment Treaty Arbitration? An Evaluation Of The Size And Wealth Of Claimants, Gus Van Harten
Osgoode Legal Studies Research Paper Series
We collected data on the size and wealth of the foreign investors that have brought claims and received compensation due to ISDS. Our main findings are that the beneficiaries of ISDS, in the aggregate, have overwhelmingly been companies with more than USD1 billion in annual revenue – especially extra-large companies with more than USD10 billion – and individuals with more than USD100 million in net wealth. ISDS has produced monetary benefits primarily for those companies or individuals at the expense of respondent states. Incidentally, we also found that extra-large companies’ success rates in ISDS, especially at the merits stage, exceeded …
Designing Emotional And Psychological Support Into Truth And Reconciliation Commissions, Verlyn F. Francis
Designing Emotional And Psychological Support Into Truth And Reconciliation Commissions, Verlyn F. Francis
Osgoode Legal Studies Research Paper Series
Truth and reconciliation commissions are a dispute resolution process used to attempt reconciliation of disputants after internal conflicts and civil wars. A large component of this transitional justice process involves truth-telling by perpetrators and victims.
Using the example of the South African Truth and Reconciliation Commission, this article argues that successful reconciliation depends on the design of the process. It is important for the designers of conflict resolution process to balance individual and institutional interests while ensuring all stakeholders are at the design table. Since truth-telling in these circumstances usually involves recalling and testifying about traumatic events, it is important …
Implementation Of Arbitration Decisions In Domestic Law, J. Scott Wilkie
Implementation Of Arbitration Decisions In Domestic Law, J. Scott Wilkie
Articles & Book Chapters
Arbitration, even if it seems simply providing for the possibility of arbitration, is increasingly attracting attention as a possible means to discipline the resolution of otherwise potentially intractable international tax controversies concerning the allocation of taxing rights under tax treaties.While perceived, though not without reservation, to be a potential welcome addition to a typical mutual agreement procedure (MAP) patterned on article 25 (“the MAP article”) of the OECD Model Tax Convention on Income and Capital(“the OECD Model”) in the form of article 25(5), other provisions of article 25, notably its “interpretive” and “application,”and “legislative”,aspects and contemplated recourse to a “joint …
Notes On The German Economy And Energy Ministry's Proposal For Reformed Investor-State Dispute Settlement (Isds), Gus Van Harten
Notes On The German Economy And Energy Ministry's Proposal For Reformed Investor-State Dispute Settlement (Isds), Gus Van Harten
Osgoode Legal Studies Research Paper Series
These notes provide a general reaction to a proposal by the German economy and energy ministry for ISDS in a treaty between Europe and the U.S. Overall, the proposal takes only a minority of the steps needed to make ISDS independent, fair, open, subsidiary, and balanced. I suggest that the appropriate approach remains to reject ISDS in new treaties (especially among Western developed countries). The proposal would be a good starting point for replacing ISDS in existing treaties with developing or transition countries – but that is clearly not its purpose.
The Icsid Under Siege: Unasur And The Rise Of A Hybrid Regime For International Investment Arbitration, Kendall Grant
The Icsid Under Siege: Unasur And The Rise Of A Hybrid Regime For International Investment Arbitration, Kendall Grant
Osgoode Legal Studies Research Paper Series
The legitimacy and effectiveness of the International Centre for Settlement of Investment Disputes (ICSID) — a dispute resolution body established in 1966 under the auspices of the World Bank — is a matter of spirited debate. It has been argued by some that ICSID’s ideological and procedural bias impedes fairness and by others that its complexity and cost restrict access to justice; many contend that the absence of an appeal process has exacerbated uncertainty and unpredictability. In 2009, in the wake of rampant dissatisfaction and ideological challenge, especially on the part of Latin American states, Ecuador proposed the creation of …
Foreign Investor Protection And Climate Action: A New Price Tag For Urgent Policies, Gus Van Harten
Foreign Investor Protection And Climate Action: A New Price Tag For Urgent Policies, Gus Van Harten
Osgoode Legal Studies Research Paper Series
From a climate perspective, not all investment is equal. Desirable investment in clean energy needs encouragement and protection, while undesirable investment in fossil fuels needs clear policy signals to avoid further investment in destructive activities and stranding more assets. In this paper, evidence is presented on how foreign investor protection provisions in trade and investment agreements tilt the playing field in favor of entrenched incumbents and against urgent action on climate; on the potential for a massive expansion of investor-state litigation and risks to climate policy in proposed trade deals; and on key flaws in recent European Commission proposals to …
A Parade Of Reforms: The European Commission's Latest Proposal For Isds, Gus Van Harten
A Parade Of Reforms: The European Commission's Latest Proposal For Isds, Gus Van Harten
Osgoode Legal Studies Research Paper Series
The European Commission's most recent proposal for ISDS reflects a move away from essentially fake reforms to something potentially more meaningful. However, it is insufficient to satisfy the criteria of independence, fairness, openness, subsidiarity, and balance and does not appear reliable until backed by clear language and a negotiating red line for the proposed Canada-Europe CETA and any other agreement providing for ISDS.
The European Commission's Push To Consolidate And Expand Isds: An Assessment Of The Proposed Canada-Europe Ceta And Europe-Singapore Fta, Gus Van Harten
The European Commission's Push To Consolidate And Expand Isds: An Assessment Of The Proposed Canada-Europe Ceta And Europe-Singapore Fta, Gus Van Harten
Osgoode Legal Studies Research Paper Series
The purpose of this paper is to evaluate the European Commission’s approach to investor-state dispute settlement (ISDS) in the proposed CETA with Canada and FTA with Singapore. The text on ISDS in both agreements is evaluated according to general criteria of independence, fairness, openness, and balance. The main conclusion reached is that there is no significant difference between the CETA and FTA when it comes to ISDS. With the qualified exception of the criterion of openness, both agreements fall well short of satisfying the criteria. As such, neither agreement offers a significant improvement on the U.S. model of ISDS and, …
“A Different Day In Court”: Exploring The Place Of Judicial Mediation In Ontario’S Alternative Dispute Resolution Landscape, Nicole Aylwin, Trevor C. W. Farrow
“A Different Day In Court”: Exploring The Place Of Judicial Mediation In Ontario’S Alternative Dispute Resolution Landscape, Nicole Aylwin, Trevor C. W. Farrow
Articles & Book Chapters
In January 2011, the Ontario Bar Association established a taskforce to explore the question of how judicial dispute resolution could improve access to justice in Ontario. In their recently released final report, the taskforce offers some compelling conclusions. In particular, the report recommends that JDR be formally recognised as part of the alternative dispute resolution options available in Ontario since it would provide litigants the opportunity to receive their “day in court” without the necessity of a costly trial.This article elaborates on the findings of the report and places them within the larger context of current research and Canadian policy …
Public Justice, Private Dispute Resolution And Democracy, Trevor C. W. Farrow
Public Justice, Private Dispute Resolution And Democracy, Trevor C. W. Farrow
Comparative Research in Law & Political Economy
This paper is about the widespread and systematic privatization of the public civil justice system. In particular, it: (1) documents the move to privatize civil disputes across all aspects of the justice system (including courts, administrative tribunals and state-sanctioned arbitration regimes), (2) looks at some of the benefits and drawbacks of privatization, specifically including negative impacts on systems of democratic governance, and (3) identifies justice - rather than efficiency - as the primary benchmark by which civil justice reform initiatives should be judged.
An Introduction To Representative Negotiation, Trevor C. W. Farrow
An Introduction To Representative Negotiation, Trevor C. W. Farrow
Articles & Book Chapters
No abstract provided.
Whither Community Justice?: The Rise Of Court-Connected Mediation In The United States, Colleen M. Hanycz
Whither Community Justice?: The Rise Of Court-Connected Mediation In The United States, Colleen M. Hanycz
Articles & Book Chapters
This paper traces the development of mediation in the United States along two distinct paths: the court-connected paradigm and the community justice paradigm. In the former, as a child of the labour arbitration movement, the link between mediation and the law appears to have been forged at conception. In the latter, we see two distinct branches: the 'Community Mediation Center' model and the neighborhood Justice Center' model. Of those illustrations of community justice, only the first has been strongly connected to the law and legal institutions, while the second strand has retained its institutional independence. These neighbourhood justice centres appear …
Re-Framing The Sharia Arbitration Debate, Trevor C. W. Farrow
Re-Framing The Sharia Arbitration Debate, Trevor C. W. Farrow
Articles & Book Chapters
This article is a response to Mr. McGuinty regarding his response to religious arbitration in the province of Ontario. First, the issue is not about simply prohibiting religious tribunals. Second, it is not only an Ontario issue. Third, it is not necessarily even a Sharia (or religion) issue. This article focuses on these three problems.
Privatizing Our Public Civil Justice System, Trevor C. W. Farrow
Privatizing Our Public Civil Justice System, Trevor C. W. Farrow
Articles & Book Chapters
No abstract provided.
Dispute Resolution, Access To Civil Justice And Legal Education, Trevor C. W. Farrow
Dispute Resolution, Access To Civil Justice And Legal Education, Trevor C. W. Farrow
Articles & Book Chapters
This article examines current dispute resolution teaching and research programs in the context of improving access to justice through recent civil justice reform initiatives. Animated by extensive domestic and international literature, online and survey-based research, the article explores the landscape of alternative dispute resolution education (primarily at law schools), comments on the need for continued thinking and reform and acts as a leading resource to assist in the ongoing, collaborative development of dispute resolution initiatives in legal education in Canada and abroad.
Dispute Resolution And Legal Education: A Bibliography, Trevor C. W. Farrow
Dispute Resolution And Legal Education: A Bibliography, Trevor C. W. Farrow
Articles & Book Chapters
No abstract provided.
Thinking About Dispute Resolution, Trevor C. W. Farrow
Thinking About Dispute Resolution, Trevor C. W. Farrow
Articles & Book Chapters
This is a review of Julie Macfarlane et al., eds. Dispute Resolution: Readings and Case Studies. 2nd ed. Toronto: Emond Montgomery, 2003.
Making The Justice System Balance: Beyond The Zuber Report, Frederick H. Zemans
Making The Justice System Balance: Beyond The Zuber Report, Frederick H. Zemans
Articles & Book Chapters
The civil and criminal justice systems rely on a highly individualized dispute resolution process in which each litigant must both prosecute and present his or her own case with limited intervention by the court system and no direct involvement by the judiciary. Neil Brooks has noted that the adversarial system reflects the "political and economic ideology of classic English liberalism in three ways: by its emphasis upon self-interest and individual initiative; by its apparent distrust of the state; and, by the significance it attaches to the participation of the parties." Much of the current discussion of access to justice is …