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Dispute Resolution and Arbitration Commons™

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2012

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Institution
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Articles 91 - 120 of 484

Full-Text Articles in Dispute Resolution and Arbitration

Bit Unfair: An Illustration Of The Backlash Against International Arbitration In Latin America, A, David Ma Jul 2012

Bit Unfair: An Illustration Of The Backlash Against International Arbitration In Latin America, A, David Ma

Journal of Dispute Resolution

With the survival of BITs at fulcrum, the Second Circuit recently decided a highly publicized and notorious case applying international arbitration in Chevron Corp. v. Republic of Ecuador. This comment will discuss Chevron and its effects within the wider corpus of BIT international arbitration to provide an illustration of the current debate and status of the BIT framework. The purported benefits BITs provide to signatory countries exist theoretically, and to test these theoretical underpinnings, this comment will discuss Chevron for the purpose of providing real context to a predominately academic debate. Chevron shall demonstrate that theoretical effects and practical effects …

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Supreme Court Issues Notice To Courts: Bifurcated Proceedings Still Required, Valerie Dixon Jul 2012

Supreme Court Issues Notice To Courts: Bifurcated Proceedings Still Required, Valerie Dixon

Journal of Dispute Resolution

The United States Supreme Court has made its preference for arbitration widely known through continued declarations of its policy to that effect. In KPMG v. Cocchi, the Supreme Court reaffirmed that preference once again. In that case, however, the Court also found a need to issue a reminder to lower courts that its decision in Dean Witter v. Byrd was still the law of the land. One of the most interesting questions arising from this clear reminder to adhere to precedent is why the Supreme Court felt the need to articulate it at all.

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Table Of Contents - Issue 2 Jul 2012

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

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Interim Measures , Marianne Roth Jul 2012

Interim Measures , Marianne Roth

Journal of Dispute Resolution

Traditionally, requests for interim relief have been a construct of courts. However, arbitrators are increasingly being asked to make such rulings themselves. Requesting interim relief from an arbitrator, as opposed to the court, is particularly appealing in international arbitration, where parties often engage in arbitration as a way of avoiding local courts and any home court advantage that may be associated with them. Sometimes, though, interim relief may be unavailable from the arbitral tribunal; for example, when coercion is associated with the requested measure. In such situations, the powers to grant interim measures are shared between arbitral tribunals and courts. …

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State Legislative Update , Lacy Cansler, Daniel Levy, Kelisen Molloy, Henry Tanner Jul 2012

State Legislative Update , Lacy Cansler, Daniel Levy, Kelisen Molloy, Henry Tanner

Journal of Dispute Resolution

While on the surface it seems like any legislation helping Americans keep their homes is a good idea, some critics question the effectiveness of these laws. They cite evidence (to be discussed below) showing foreclosure rates do not improve in states with foreclosure mediation laws. Others argue that while it may only be a short-term fix towards the larger problems that ail our economy, foreclosure mediation has shown to be a positive measure that helps many Americans, especially when the law is properly written. This paper will analyze the recent foreclosure mediation laws, and will explore the effectiveness of this …

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Property Insurance Appraisal: Is Determining Causation Essential To Evaluating The Amount Of Loss , Ashley Smith Jul 2012

Property Insurance Appraisal: Is Determining Causation Essential To Evaluating The Amount Of Loss , Ashley Smith

Journal of Dispute Resolution

While the appraisal procedure is commonly used in property insurance claims, the scope of an appraisal is contested. Courts are divided on whether to allow the determination of causation within an appraisal process. Whether or not to allow the determination of causation in appraisal and the reasoning behind each position can be influential for the majority of state and federal courts who have yet to confront this issue. Outlined below is an overview of the appraisal process within the property insurance context, a distinction of causation from coverage, and courts’ reasoning for allowing or forbidding the determination of causation in …

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From Noise To Music: The Potential Of The Multi-Door Courthouse (Casas De Justicia) Model To Advance Systemic Inclusion And Participation As A Foundation For Sustainable Rule Of Law In Latin America , Mariana Hernandez-Crespo Jul 2012

From Noise To Music: The Potential Of The Multi-Door Courthouse (Casas De Justicia) Model To Advance Systemic Inclusion And Participation As A Foundation For Sustainable Rule Of Law In Latin America , Mariana Hernandez-Crespo

Journal of Dispute Resolution

International bodies have attempted to provide a more sustainable response to instability through legal reform with an emphasis on rule of law, access to justice, and the use of alternative or appropriate dispute resolution. Yet, in Latin America of yesterday and today, there is a marked gap between law on the books and law in action, due in part to lack of citizen engagement.

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If It Only Had A Heart: Supreme Court Eschews Compassion For Cash-Strapped Consumers In Upholding The Validity Of Arbitration Clauses In Credit Repair Contracts, Collin Koenig Jul 2012

If It Only Had A Heart: Supreme Court Eschews Compassion For Cash-Strapped Consumers In Upholding The Validity Of Arbitration Clauses In Credit Repair Contracts, Collin Koenig

Journal of Dispute Resolution

in CompuCredit Corp. v. Greenwood, the Supreme Court was faced with the issue of whether consumers' claims under the CROA can be resolved through contractually required arbitration, or whether the language of the statute requires resolution between credit repair organizations and consumers may include enforceable arbitration agreements. This note criticizes the Supreme Court's reasoning, partly inspired by Justice Ginsburg's dissent. In enforcing arbitrability of CROA disputes, the Court has acted contrary to Congress' purposes of the Act: to ensure that consumers are making an "informed decision" when dealing with CROs and to protect consumers from deceptive credit repair services. In …

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Faa Versus The Magnuson - Moss Warranty Act: Which Warrants Precedence, The, Tyler Beckerle Jul 2012

Faa Versus The Magnuson - Moss Warranty Act: Which Warrants Precedence, The, Tyler Beckerle

Journal of Dispute Resolution

These questions have proven to be a formidable foe for the judiciary. Moreover, courts and commentators have been divided as to what answer will produce the best policy. In 2002, the discussion seemed to be headed toward conclusion after the Fifth and Eleventh Circuits found that the FAA should trump the MMWA in the event of statutory conflict. However, with the Ninth Circuit’s decision in Kolev v. Euromotors West/The Auto Gallery, this polarizing issue has once again become a focus in American jurisprudence. While the Ninth Circuit has recently withdrawn Kolev sua sponte, it is doubtful that the Ninth Circuit …

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Private Resolution Of Public Disputes: Employment, Arbitration, And The Statutory Cause Of Action, Griffin Toronjo Pivateau Jun 2012

Private Resolution Of Public Disputes: Employment, Arbitration, And The Statutory Cause Of Action, Griffin Toronjo Pivateau

Pace Law Review

In this Article, I argue that arbitration agreements fall somewhere along the middle of the rights/contract continuum. My understanding of the nature of arbitration agreements relies on a previously existing area of employment law. There is a particular aspect of the employment relationship that, while open to contract, remains subject to constraints imposed by the law. A noncompete agreement permits an employee to contract with his employer to not work for a competitor following the termination of the employment relationship. This right to contract away the right to compete is, however, narrowly construed by the court system. A court may …

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“Waiving” Goodbye To Arbitration: A Contractual Approach, Paul Bennett Iv Jun 2012

“Waiving” Goodbye To Arbitration: A Contractual Approach, Paul Bennett Iv

Washington and Lee Law Review

No abstract provided.

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Class Actions: Settlement, Approval; Res Judicata; Claims Administration And Cy-Pres Awards, Janet Walker Jun 2012

Class Actions: Settlement, Approval; Res Judicata; Claims Administration And Cy-Pres Awards, Janet Walker

Conference Papers

No abstract provided.

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Alternative Dispute Resolution Design In Financial Markets—Some More Equal Than Others: Hong Kong's Proposed Financial Dispute Resolution Center In The Context Of The Experience In The United Kingdom, United States, Australia, And Singapore, Shahla F. Ali, Antonio Da Roza Jun 2012

Alternative Dispute Resolution Design In Financial Markets—Some More Equal Than Others: Hong Kong's Proposed Financial Dispute Resolution Center In The Context Of The Experience In The United Kingdom, United States, Australia, And Singapore, Shahla F. Ali, Antonio Da Roza

Washington International Law Journal

Systems of financial dispute resolution currently operate in most major financial centers throughout the world. As such systems expand and develop to address a growing number of finance-related disputes, they must inevitably address the question of their role and function in financial market regulation. Such questions are rooted in the larger socio-legal dispute processing debate examining how institutional dispute resolution mechanisms effectively regulate the repeat player knowledge/power gap through appropriate policies and procedures. Using the example of Hong Kong in comparison with financial dispute resolution models currently in existence in the United Kingdom, Australia, Singapore, and the United States, this …

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Confrontation Or Conciliation: Does Science Have The Answer?, Nadja Alexander Jun 2012

Confrontation Or Conciliation: Does Science Have The Answer?, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this post, I want to talk about an important thread that is emerging in the science of the twenty-first century. It is the finding that we are all interconnected, that we are porous beings with the ability to influence not only ourselves but one another in ways not previously contemplated. What we previously knew as real, that is the Cartesian duality of mind and body and the notion of separateness in relation to individuals and objects is a fast-fading myth. This new paradigm for understanding and experiencing the world has profound implications for our approach to conflict. It suggests …

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Confrontation Or Conciliation: Does Science Have The Answer?, Nadja Alexander Jun 2012

Confrontation Or Conciliation: Does Science Have The Answer?, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this post I want to talk about an important thread that is emerging in the science of the twenty-first century. It is the finding that we are all interconnected, that we are porous beings with the ability to influence not only ourselves but one another in ways not previously contemplated. What we previously knew as real, that is the Cartesian duality of mind and body and the notion of separateness in relation to individuals and objects, is a fast-fading myth (Damasio 1994, 1999, BenZion 2010).This new paradigm for understanding and experiencing the world has profound implications for our approach …

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Trips And Bits: An Essay On Compulsory Licenses, Expropriation, And International Arbitration, Peter B. Rutledge Jun 2012

Trips And Bits: An Essay On Compulsory Licenses, Expropriation, And International Arbitration, Peter B. Rutledge

Scholarly Works

This essay examines the potential for arbitration to resolve disputes between private companies and developing countries over the propriety of compulsory licenses. At bottom, my thesis is that arbitration supplies the medium through which to mediate the tension between the profit-seeking goals of private multinational companies and the development goals of foreign nations, especially in the developing world. The compulsory license debate raises a clash of fundamental interests between the patent holder, the patent holder’s state, and the host state. Arbitration can play an important role in balancing those interests, albeit a highly unusual one. Arbitration provides an essential forum …

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The Private Enforcement Of Public Laws In Armendariz V. Foundation Health Psychcare Services, Jennifer Lafond May 2012

The Private Enforcement Of Public Laws In Armendariz V. Foundation Health Psychcare Services, Jennifer Lafond

Pepperdine Law Review

No abstract provided.

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Sports Law Arbitration By Cas: Is It The Same As International Arbitration?, Richard H. Mclaren May 2012

Sports Law Arbitration By Cas: Is It The Same As International Arbitration?, Richard H. Mclaren

Pepperdine Law Review

No abstract provided.

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Leveraging Extractive Industry Infrastructure Investments For Broad Economic Development: Regulatory, Commercial And Operational Models For Railways And Ports, Perrine Toledano May 2012

Leveraging Extractive Industry Infrastructure Investments For Broad Economic Development: Regulatory, Commercial And Operational Models For Railways And Ports, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

The initial phase of the Leveraging Mining-Related Infrastructure Investments for Development project consisted of a worldwide survey of regulatory, commercial and operating case studies of shared use of mining-related infrastructure. This Policy Paper delivers the findings for mineral railways and ports.

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Managing Expectations: Beyond Formal Adjudication, Susan Franck May 2012

Managing Expectations: Beyond Formal Adjudication, Susan Franck

Scholarly Articles in Law Reviews & Journals

The international investment system has depended heavily on international arbitration to provide guidance and clarification on the standards contained in international investment agreements. In order to assess the system realistically, this commentary discusses unpacking stakeholder expectations by recognizing where expectations may have been overly optimistic and thinking systematically about the mechanisms through which to capture and manage regulatory discretion. This article evaluates ideas expressed by Anne van Aaken and Bart Legum, which consider different ways to achieve regulatory and commercial balance, and offers a lens for thinking systematically about managing stakeholder expectations in the international investment system. A critical issue …

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Introducing A ‘Presumption Of Adr’ For Civil Matters In The Subordinate Courts, Joyce Low, Dorcas Quek Anderson May 2012

Introducing A ‘Presumption Of Adr’ For Civil Matters In The Subordinate Courts, Joyce Low, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

This article traces the development of court ADR programmes in the SubordinateCourts for civil disputes. It also discusses the implications of a recent PracticeDirection introducing a “Presumption of ADR”.

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Excessive Or Warranted? The Unshackling Of Discovery Sanctions In Lee V. Max International, Llc, Daniel S. Mehr Iii May 2012

Excessive Or Warranted? The Unshackling Of Discovery Sanctions In Lee V. Max International, Llc, Daniel S. Mehr Iii

BYU Law Review

No abstract provided.

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Summary Of Jones V. Suntrust Mortgage, Inc., 128 Nev. Adv. Op. 18, Rami Hernandez Apr 2012

Summary Of Jones V. Suntrust Mortgage, Inc., 128 Nev. Adv. Op. 18, Rami Hernandez

Nevada Supreme Court Summaries

An appeal from a district court order denying judicial review in a foreclosure mediation matter.

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Cooperative Bargaining Styles At Fmcs: A Movement Toward Choices , Carolyn Brommer, George Buckingham, Steven Loeffler Apr 2012

Cooperative Bargaining Styles At Fmcs: A Movement Toward Choices , Carolyn Brommer, George Buckingham, Steven Loeffler

Pepperdine Dispute Resolution Law Journal

The Federal Mediation and Conciliation Service ("FMCS") was created in 1947. While an array of subsequent statutory enactments have expanded the FMCS charter, the core mission of FMCS has been, and remains, to assist labor and management to settle their disputes through mediation as well as to promote the development of sound and stable labor management relationships. The vision of how that mission will be realized has changed significantly in response to changes in our society, to expanded knowledge of conflict resolution and labor relations, and to lessons gathered by the nation's mediators over a half-century of work with collective …

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Construction Partnering: Can These Protocols Build A Stronger Labor-Management Community?, Jim Stott, Juan Carlos Gonzalez Apr 2012

Construction Partnering: Can These Protocols Build A Stronger Labor-Management Community?, Jim Stott, Juan Carlos Gonzalez

Pepperdine Dispute Resolution Law Journal

In an expansive marketplace where large organizations in the construction, manufacturing, service and union industries are facing increased global competition, collaborative labor relations are essential to maximizing efficiency and productivity. It is for this reason that developing collaboration between labor and management is highly researched and consulted by academics and professionals throughout the world. Although various models of collaboration have been developed, none have been found to clearly overcome that insidious conflict and paradigm of "Labor vs. Management." The purpose of this paper is to provide academics and consultants (mediators/facilitators) an additional perspective for designing, developing and implementing the best …

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The Federal Mediation And Conciliation Service: A Partner In International Conflict Prevention, Andrea Strimling Apr 2012

The Federal Mediation And Conciliation Service: A Partner In International Conflict Prevention, Andrea Strimling

Pepperdine Dispute Resolution Law Journal

The Federal Mediation and Conciliation Service ("FMCS"), an independent agency of the U.S. government with over a half-century of conflict management and institutional-development experience, is a valuable resource in U.S. efforts to prevent armed conflict and build the foundations for lasting security in the U.S. and around the world. Given the urgency and complexity of this challenge, the United States should identify, support, and leverage all appropriate resources for preventive diplomacy, including short-term operational prevention and long-term structural prevention. Through its International Program, FMCS has already made important contributions to both types of prevention, drawing on three strategic assets that …

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Managing Workplace Grief--Vision And Necessity , Jan Jung-Min Sunoo, Brenda Paik Sunoo Apr 2012

Managing Workplace Grief--Vision And Necessity , Jan Jung-Min Sunoo, Brenda Paik Sunoo

Pepperdine Dispute Resolution Law Journal

In the course of offering workplace expertise, the FMCS has also presented its workshop "Managing Grief in the Workplace." The trainings have been given at local, regional, national and international labor relations and mediation conferences, and in college settings. We have found great receptivity to this cutting edge topic. Support in this area can greatly help unions and companies work through the conflicting expectations of a bereaved employee's job performance. Workshops in "Managing Grief in the Workplace" can initiate needed discussions and helping the partners to set up compassionate and realistic bereavement policies in the workplace. Finally, many participants expressed …

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Battling School Violence With Mediation Technology , Gary Richard Hattal, Cynthia Morrow Hattal Apr 2012

Battling School Violence With Mediation Technology , Gary Richard Hattal, Cynthia Morrow Hattal

Pepperdine Dispute Resolution Law Journal

As we begin the Twenty-First Century public schools have become dangerous places, and not just high schools. Children as young as ten and eleven have brought the system to its knees by shooting down their teachers and fellow students on campus. No one is talking about "juvenile delinquency" anymore. We are hearing and talking about lethal incidents of juvenile violence among all social classes and races, suburban and inner city youth alike. This paper is a discussion of various issues surrounding school violence and its implications for our children. Our focus is to: (1) determine the root causes of extreme …

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Essential Collaborative Technology Tools For The 21st Century: Fmcs Tags System , Michael J. Wolf, Jon Numair, Jack Yoedt Apr 2012

Essential Collaborative Technology Tools For The 21st Century: Fmcs Tags System , Michael J. Wolf, Jon Numair, Jack Yoedt

Pepperdine Dispute Resolution Law Journal

Mediators employed by the Federal Mediation and Conciliation Service ("FMCS") utilize a powerful set of technology tools that helps groups more effectively solve problems, make decisions and implement those decisions more successfully. FMCS mediators use these tools to help customers conduct collective bargaining negotiations, strategic planning sessions, grievance meetings, internal elections, large conferences, as well as remote meetings and online surveys via the Internet. Known as the FMCS TAGS System, this network of Internet servers, mobile computers, electronic conferencing facilities, customized software and external partners has demonstrated significant achievements during its first two years of operation. FMCS customers report that …

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Fmcs On The Cutting Edge, Richard Barnes Apr 2012

Fmcs On The Cutting Edge, Richard Barnes

Pepperdine Dispute Resolution Law Journal

As a national organization with a proud and distinguished history in conflict resolution, FMCS has always felt a particular obligation to promote professionalism and public confidence in the mediation process. In light of the growing number of individuals who identify themselves as "mediators", and the lack of any uniform standards for the practice of mediation, FMCS is the first national organization to credential outside private and public sector mediators. We are focusing on three specific dispute resolution disciplines: labor, employment, and regulatory negotiations. Credentialing does not restrict mediation practitioners to the extent that licensure and certification would. Rather, credentialing distinguishes …

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