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Dispute Resolution and Arbitration Commons™

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2012

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Articles 361 - 390 of 484

Full-Text Articles in Dispute Resolution and Arbitration

The Role Of Precedent In Defining Res Judicata In Investor–State Arbitration, Pedro J. Martinez-Fraga, Harout Jack Samra Jan 2012

The Role Of Precedent In Defining Res Judicata In Investor–State Arbitration, Pedro J. Martinez-Fraga, Harout Jack Samra

Northwestern Journal of International Law & Business

As international arbitration, and investment arbitration in particular, becomes more prevalent, the risks of doctrinal fragmentation also increase, in part driven by the disparate treatment of the doctrine of res judicata throughout most jurisdictions, and in the arbitration context. Notwithstanding the general consensus regarding the broad contours of res judicata and its firm position as a principle of international law, there is little agreement regarding how it is to be administered. These developments threaten to undermine the international arbitration system, wresting from it normative legitimacy. The U.S. common law version of res judicata, which is distinct from res judicata as …

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Party Autonomy And Access To Justice In The Uncitral Online Dispute Resolution Project, Ronald A. Brand Jan 2012

Party Autonomy And Access To Justice In The Uncitral Online Dispute Resolution Project, Ronald A. Brand

Loyola University Chicago International Law Review

No abstract provided.

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Faa Law, Without The Activism: What If The Bellwether Cases Were Decided By A Truly Conservative Court, Richard C. Reuben Jan 2012

Faa Law, Without The Activism: What If The Bellwether Cases Were Decided By A Truly Conservative Court, Richard C. Reuben

Faculty Publications

The U.S. Supreme Court has decided an extraordinary number of cases under the Federal Arbitration Act in the last half century, a pattern that continues today at the pace of a case or two a year. During this time, Republican presidential candidates have made much political hay out of the Supreme Court, running against the Warren Court’s “liberal activism” by promising to appoint judges who would decide cases more conservatively. In this article, I analyze whether this promise has been fulfilled in the context of the Supreme Court’s FAA jurisprudence by identifying the core principles of judicial conservatism – restraint, …

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Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong Jan 2012

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong

Faculty Publications

This article provides just that sort of guide, outlining the various ways in which U.S. federal courts can become involved in international commercial arbitration and introducing both basic and advanced concepts in a straightforward, practical manner. However, this article provides more than just an overview. Instead, it discusses relevant issues on a motion-by-motion basis, helping readers find immediate answers to their questions while also getting a picture of the field as a whole. Written especially for busy lawyers, this article gives practitioners, arbitrators and new and infrequent participants in international commercial arbitration a concise but comprehensive understanding of the unique …

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Dispute Resolution As A Part Of Your Merger Or Your Acquisition Agreement, Kenneth Mathieu, Vincent (Trace) P. Schmeltz Iii Jan 2012

Dispute Resolution As A Part Of Your Merger Or Your Acquisition Agreement, Kenneth Mathieu, Vincent (Trace) P. Schmeltz Iii

Michigan Business & Entrepreneurial Law Review

Often overlooked until invoked, the dispute resolution provisions of an acquisition agreement frequently mirror the terms of a lawyer’s last deal. Yet such provisions—including purchase price adjustment clauses, the terms of governing earn-out disputes, and the contract sections outlining the indemnification claims process—often have long-term economic ramifications on the buyers and sellers. In working with corporate lawyers over the years, we have noted that corporate lawyers understand (and give intense thought to) the leverage their clients have, what their clients hope to accomplish in a transaction, and what makes long-term economic sense in drafting an agreement and negotiating more advantageous …

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Disputing Arbitration Clauses In International Insurance Agreements: Problems With The Self-Execution Framework, Michael J. Ritter Jan 2012

Disputing Arbitration Clauses In International Insurance Agreements: Problems With The Self-Execution Framework, Michael J. Ritter

Pace International Law Review Online Companion

This Article argues that the self-execution framework that courts have adopted—and scholars have endorsed—in addressing whether McCarran-Ferguson enables states to reverse preempt the New York Convention is inadequate. First, the Article addresses the interpretive question: what is an “Act of Congress” under McCarran-Ferguson? By examining whether a treaty is self or non-self-executing, courts discard proper methods of statutory interpretation. Second, the Article argues that courts have failed to satisfactorily transpose the self-execution doctrine—which has been relevant only in determining whether a treaty confers a legally enforceable right in the U.S.—into the context of the conflict between McCarran-Ferguson and the New …

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The Public Interest In International Arbitration, Jan Paulsson Jan 2012

The Public Interest In International Arbitration, Jan Paulsson

Articles

No abstract provided.

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Law – Made In Germany: Global Standort Or Global Standard?, James Maxeiner Jan 2012

Law – Made In Germany: Global Standort Or Global Standard?, James Maxeiner

All Faculty Scholarship

Earlier this year the Federal Ministry of Justice released the second edition of the brochure, Law - Made in Germany. For those readers who do not know the brochure, it is the product of an umbrella group of German professional organizations known as the Bündnis für das deutsche Recht. A purpose of the Bündnis, as stated at its founding in 2008, and of the brochure, is to improve the position of German law in the ― "international competition of legal systems" (internationalen Wettbewerb der Rechtsordnungen). Catalyst for founding of the Bündnis and for publication of Law - Made in Germany …

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Election Law And Civil Discourse: The Promise Of Adr, Joshua A. Douglas Jan 2012

Election Law And Civil Discourse: The Promise Of Adr, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article was the result of a Symposium that explored the potential promises of alternative dispute resolution (“ADR”) for resolving election law disputes. Both election law and ADR scholars opined on how ADR can help to achieve various goals for deciding contentious election law cases. My focus in this essay is narrower: I suggest that employing some features of ADR to resolve election disputes can help to improve the civil discourse of our elections and our political culture. That is, certain aspects of ADR can assist in reducing caustic language in election law judicial decisions, in the media’s reporting of …

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Resolving Disputed Elections Through Negotiation, Rishi Batra Jan 2012

Resolving Disputed Elections Through Negotiation, Rishi Batra

Faculty Articles

Could a disputed election—one in which the winner is not clear and the result is within the "margin of litigation"—be resolved through a negotiated result? Given the "winner take all" nature of these elections, where one candidate ends up holding the office, and all others do not, it would seem that negotiated solutions and other alternative dispute resolution techniques would have no application. This article explores why self-interested candidates and their associated parties may be interested in a negotiated outcome, what the scope of such an agreement could look like, and how to overcome barriers to such a negotiated result.

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Document Production In International Arbitration: A Critique From 'Across The Pond', Peter Ashford Jan 2012

Document Production In International Arbitration: A Critique From 'Across The Pond', Peter Ashford

Loyola University Chicago International Law Review

No abstract provided.

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Juridical Convergence In International Dispute Resolution: Developing A Substantive Principle Of Transparency And Transnational Evidence Gathering, Pedro J. Martinez-Fraga Jan 2012

Juridical Convergence In International Dispute Resolution: Developing A Substantive Principle Of Transparency And Transnational Evidence Gathering, Pedro J. Martinez-Fraga

Loyola University Chicago International Law Review

No abstract provided.

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Ethics In International Arbitration: Traps For The Unwary, Margaret L. Moses Jan 2012

Ethics In International Arbitration: Traps For The Unwary, Margaret L. Moses

Loyola University Chicago International Law Review

No abstract provided.

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American Exceptionalism In Consumer Arbitration, Amy J. Schmitz Jan 2012

American Exceptionalism In Consumer Arbitration, Amy J. Schmitz

Loyola University Chicago International Law Review

No abstract provided.

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Pre-Tribunal Emergency Relief In International Commercial Arbitration, Erin Collins Jan 2012

Pre-Tribunal Emergency Relief In International Commercial Arbitration, Erin Collins

Loyola University Chicago International Law Review

No abstract provided.

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The Irony Of At&T V. Concepcion, Colin P. Marks Jan 2012

The Irony Of At&T V. Concepcion, Colin P. Marks

Faculty Works

This Essay explores the possible dual readings of Concepcion in light of the FAA and its interpretation, including Supreme Court precedents. This Essay concludes that though there is support for interpreting the Concepcion decision narrowly, it is more likely that a broader interpretation was intended, but the metes and bounds of this opinion have yet to be explored. Nonetheless, under this broad interpretation, the effect on consumers will be to discourage individuals from seeking redress for their claims. Indeed, the decision may actually encourage businesses to breach contractual obligations with impunity when the individual sums owed are too small to …

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What Constitutes An "Agreement In Writing" In International Commercial Arbitration? Conflicts Between The New York Convention And The Federal Arbitration Act, S. I. Strong Jan 2012

What Constitutes An "Agreement In Writing" In International Commercial Arbitration? Conflicts Between The New York Convention And The Federal Arbitration Act, S. I. Strong

Faculty Publications

This article investigates whether and to what extent a party must produce an “agreement in writing” when seeking to enforce an international arbitration agreement or award in a U.S. federal court. This issue has recently given rise to both a circuit split and a petition for certiorari to the U.S. Supreme Court, and involves matters of formal validity as well as federal subject matter jurisdiction. The problem arises out of subtle differences in the way an “agreement in writing” is defined in the Federal Arbitration Act (FAA) and the 1958 United Nations Convention on the Recognition and Enforcement of Foreign …

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Mandatory Arbitration Of Internal Trust Disputes: Improving Arbitrability And Enforceability Through Proper Procedural Choices, S. I. Strong Jan 2012

Mandatory Arbitration Of Internal Trust Disputes: Improving Arbitrability And Enforceability Through Proper Procedural Choices, S. I. Strong

Faculty Publications

Trusts and their civil law equivalents, often known as foundations or associations, play a large and increasing role in the global economy, holding trillions of dollars worth of assets and generating billions of dollars worth of revenue and trustees’ fees annually. Once considered nothing more than “mere” estate planning devices, trusts are now more often seen in commercial rather than in private contexts, and often feature sophisticated financial institutions as professional trustees. With favorable tax laws in various off-shore jurisdictions making international trusts increasingly popular and hostile trust litigation reaching epidemic proportions, arbitration would seem to be many parties’ dispute …

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Mending The Fracture: Bringing Parties Together On High Volume Hydraulic Fracturing Through Alternative Dispute Resolution, Allison Rose Jan 2012

Mending The Fracture: Bringing Parties Together On High Volume Hydraulic Fracturing Through Alternative Dispute Resolution, Allison Rose

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

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Teaching Students To Negotiate Like A Lawyer, John M. Lande Jan 2012

Teaching Students To Negotiate Like A Lawyer, John M. Lande

Faculty Publications

Some important stages might include: (1) initial client interview, (2) negotiation of a retainer agreement, (3) developing good working relationships with counterpart lawyers, (4) conducting factual investigation and/or legal research, (5) working with counterparts to plan the negotiation process, (6) resolving discovery disputes, (7) preparing client for negotiations, (8) conducting an ultimate negotiation, (9) engaging a mediator and mediating the matter, and (10) drafting a settlement agreement. This essay suggests that by using both single-stage and multi-stage simulations, instructors can better prepare students for negotiations that they will actually conduct in practice. These suggestions grow out my book, Lawyering with …

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Wisdom And Conflict Resolution: A Possible Framework For Integrated Practice, Rachel Goldberg, Brian Blancke Jan 2012

Wisdom And Conflict Resolution: A Possible Framework For Integrated Practice, Rachel Goldberg, Brian Blancke

Cardozo Journal of Conflict Resolution

What would it look like to practice in a way that fully supported not only the cognitive and emotional intelligence of practitioners and parties, but their somatic and spiritual intelligence as well? Good practice is more than strong technique and knowledge. Good work depends on intention, presence, and a connection with parties. The authors argue that for interveners and parties, conflict involves all four dimensions of human understanding. Given the systemic nature of conflict intervention, the authors explore what multi-dimensional practice might look like, and propose a new multi-dimensional framework grounded in current work. The article includes practice examples showing …

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Mediation Over Prosecution: The Right Approach To Increasing School Attendance In Baltimore City, Franklin Branch Jan 2012

Mediation Over Prosecution: The Right Approach To Increasing School Attendance In Baltimore City, Franklin Branch

Student Articles and Papers

No abstract provided.

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Cruises, Class Actions, And The Court, David Korn, David Rosenberg Jan 2012

Cruises, Class Actions, And The Court, David Korn, David Rosenberg

University of Michigan Journal of Law Reform Caveat

As the Carnival Triumph debacle splashed across the national consciousness, lawyers shook their heads. Sensationalist news coverage exposed common knowledge in the legal community: cruise passengers have little recourse against carriers, and, as a result, they often bear the brunt of serious physical and financial injuries. Cruise lines, escaping legal accountability for their negligence, sail off undeterred from neglecting passenger safety on future voyages. While its previous decisions helped entrench this problem, a recently argued case presents the Supreme Court with another opportunity to address it.

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Why American Express V. Italian Colors Does Not Matter And Coordinated Pursuit Of Aggregate Claims May Be A Viable Option After Concepcion, Gregory C. Cook Jan 2012

Why American Express V. Italian Colors Does Not Matter And Coordinated Pursuit Of Aggregate Claims May Be A Viable Option After Concepcion, Gregory C. Cook

University of Michigan Journal of Law Reform Caveat

This Comment suggests that the upcoming decision by the Supreme Court in American Express Co. v. Italian Colors Restaurant will not change the class action landscape. While the plaintiff bar contends that certain public policy goals will be lost as a result of American Express and AT&T Mobility LLC v. Concepcion, this Comment argues that, in the correct circumstances, coordinated individual arbitrations can address at least some of these public policy goals and plaintiff counsel should focus on such coordination efforts (including, for instance, ethically recruiting actually-injured plaintiffs, the use of common plaintiff counsel, the use of common experts, and …

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Paradox Lost: The Potential Of Restorative Attorney Discipline — With A Cautionary Call For Making Distinctions, Jeffrey W. Stempel Jan 2012

Paradox Lost: The Potential Of Restorative Attorney Discipline — With A Cautionary Call For Making Distinctions, Jeffrey W. Stempel

Nevada Law Journal

No abstract provided.

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Arbitrating Trade Disputes (Who's The Boss?), Petros C. Mavroidis Jan 2012

Arbitrating Trade Disputes (Who's The Boss?), Petros C. Mavroidis

Faculty Scholarship

World Trade Organization (“WTO”) dispute settlement has attracted a lot of interest over the years and there is a plethora of academic papers focusing on various aspects of this system. Paradoxically, there is little known about the identity of the WTO judges: since, at the end of the day, the WTO has evolved into the busiest forum litigating state-to-state disputes. There are many writings regarding the appointment process in other international tribunals. At the risk of doing injustice to many papers on this issue, we should mention the following works: Terris et al. look at various courts and especially those …

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Securing Natural Justice In Arbitration Proceedings, Austin Ignatius Pulle Jan 2012

Securing Natural Justice In Arbitration Proceedings, Austin Ignatius Pulle

Research Collection Yong Pung How School Of Law

The legitimacy and integrity of any system that adjudicates the rights and duties ofpersons would be evaluated by reference to the standards required by the principles of natural justice. Arbitration is becoming more popular as a system of dispute resolution because of the exponential increase of cross-border transactions that are a feature of globalization. Now arbitrations take place in countries that lack a well-developed arbitration culture. Courts in some of these countries have yet to develop a coherent body of law that clarifies and gives effect to the principles of natural justice. Moreover, important values protected by natural justice principles …

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At&T Mobility And Faa Over-Preemption, Jill I. Gross Jan 2012

At&T Mobility And Faa Over-Preemption, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

The Supreme Court's recent arbitration law decisions reflect the Court's strong support for arbitration agreements, but also severely limit the states’ powers to police the fairness of arbitration. In particular, the Court’s decision in AT&T Mobility v. Concepcion, LLC expands the FAA preemption doctrine beyond its prior boundaries, signaling how far the Court is willing to go to support arbitration clauses at the expense of states’ rights and the values of federalism. This article explores the impact of AT&T Mobility on the preemption of state arbitration law, and the concomitant impact on the balance between state and federal power in …

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Investor Protection Meets The Federal Arbitration Act, Jill I. Gross Jan 2012

Investor Protection Meets The Federal Arbitration Act, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

In the past three decades, most recently in AT&T Mobility LLC v. Concepcion, the United States Supreme Court has advanced an aggressive pro-arbitration campaign, transforming the Federal Arbitration Act (FAA) into a powerful source of anti-consumer substantive arbitration law. In the aftermath of AT&T Mobility, which upheld a prohibition on class actions in a consumer contract despite state law that refused to enforce such provisions on unconscionability grounds, efforts have been made to prohibit investors from bringing class actions or joining claims, including claims under the Securities Exchange Act of 1934 (the Exchange Act). In the most egregious example to …

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The Revolution In Family Law Dispute Resolution, John M. Lande Jan 2012

The Revolution In Family Law Dispute Resolution, John M. Lande

Faculty Publications

This article surveys a wide range of procedures that divorcing parties now use, including self-representation. Lawyers sometimes provide “unbundled” legal services to help parties who want to divide responsibilities for legal tasks between themselves and their lawyers. Parties often use mediation, arbitration, and private judging. Norms for lawyers’ professional roles have emphasized the importance of cooperation and some lawyers offer “planned early negotiation” processes such as Collaborative and Cooperative Law. Family courts engage in a wide range of activities beyond traditional litigation and adjudication. Many courts manage or mandate parent education and services related to domestic violence. Courts regularly appoint …

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