Dispute Resolution and Arbitration Commons^™

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

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, …

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

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 …

Mediation: The Best And Worst Of Times, Jacqueline Nolan-Haley

Cardozo Journal of Conflict Resolution

At this period in the evolution of dispute resolution, mediation is in a unique time zone, similar to what Dickens described in a Tale of Two Cities, as the best and worst of times, the seasons of Light and Darkness. It is the best of times, the season of Light and a time of joy in honoring human connections, as mediation is widely embraced in the public and private sectors. From government agencies and courts to corporations and United Nations peacemaking units, mediation offers a vision of hope in the midst of drowning bureaucracies, clogged dockets, corporate scandals and …

Medical Malpractice Claims In Mississippi: A Preliminary Analysis, Randall K. Johnson

Faculty Works

This essay explains where medical malpractice claims are filed in Mississippi. It initially does so by collecting state circuit court data, which have been recently released by the Administrative Office of Courts. The essay, then, computes summary statistics. Lastly, it examines these statistics: in order to find out which county had the most medical malpractice claims.

The Extension Of The Arbitral Agreement To Non-Signatories In Europe: A Uniform Approach?, Eduardo Silva Romero, Luis Miguel Velarde Saffer

American University Business Law Review

No abstract provided.

Beginning With Yes: A Review Essay On Michael Wheeler's The Art Of Negotiation: How To Improvise Agreement In A Chaotic World, Leonard L. Riskin

UF Law Faculty Publications

Michael Wheeler's The Art of Negotiation: How to Improvise Agreement in a Chaotic World stands on the shoulders of a number of previous books on negotiation by Wheeler's colleagues in the Program on Negotiation at Harvard Law School (PON), and others, but not because it needs their support. Instead, The Art of Negotiation illuminates the principal models in such books, by showing why, when, and how to improvise in relation to them. Some standard models of negotiation seem static, Wheeler tells us, whereas negotiation mastery requires dealing with the ‘inherent uncertainty‘ of almost any negotiation, and that calls for improvisation, …

What Judges Want And Need: User-Friendly Foundations For Effective Judicial Education, Duane Benton, Jennifer A.L. Sheldon-Sherman

Journal of Dispute Resolution

This article evaluates the connection between judicial education and judges’ needs and preferences. In Part I, we begin by discussing the history, purpose, and form of judicial education, charting its evolution over time. In Part II, we examine current judicial education programs and scholarship, highlighting differences and similarities between federal and state programming. In Part III, we analyze the limitations of existing scholarship and programming, arguing judicial education programs are insufficiently tied to evidence of judicial demands. We conclude in Parts IV and V by suggesting two proposals to align programming with needs: (1) an annual needs-based assessment of judicial …

Judicial Education: Pedagogy For A Change, T. Brettel Dawson

Journal of Dispute Resolution

Canadian judges have maintained a steadfast, long-term commitment to judicial education. Through teaching one another, judges renew their vision over time, and more concretely, address their concerns and challenges today. Since its inception in 1985, the National Judicial Institute (NJI) has sought to be a partner and a resource to judges and Courts in a shared endeavour to create relevant, practical, and effective judicial education. Working together, the NJI, judges, and Courts have built a “Canadian model” of judicial education widely respected and emulated.

Arbitration Whack-A-Mole: The Federal Policy Favoring Arbitration Hammers The Rights Of Individual Employees, Spring E. Taylor

Journal of Dispute Resolution

In a country that protects the plaintiff's right to a day in court, it only seems natural that Sally should have the opportunity to take her cause to the courthouse. But the strong fedral presumption that supports the enforcement of arbitration provisions is like a hammber that pushes plaintiffs like Sally and those if Huffman into the arbitration arena. In Huffman, the Sixth Circuit rescued an employwer from an ambiguous arbitration provision contained in the employer-drafted employment agreement and enforced the arbitration provision as one of the provisions to survive expiration of the contract, even though it was not listed …

Legislative Study: Massachusetts Municipal Conflict Resolution Needs Assessment, Interim Report, Massachusetts Office Of Public Collaboration, University Of Massachusetts Boston

Massachusetts Office of Public Collaboration Publications

All across Massachusetts, municipal officials are at the front line of dealing with today’s complex problems in such areas as budgets, education, land use, environment, economic development, public works, public safety and public health. In addressing these complex problems, local public officials tackle public conflicts head-on and bring many to resolution. However, officials also face public conflicts that persist and impair their ability to move forward. This study documents specific needs that municipal officials identified as important for dealing with public conflict and for obtaining the societal results they desired. These ran the gamut from resource and process-oriented needs to …

Diálogo Y Políticas Públicas: Transformación De Conflictos En El Marco De La Gestión De La Política Pública, Fundación Futuro Latinoamericano, University Of Massachusetts Boston

Center for Peace, Democracy and Development Publications

Cuando la Fundación Futuro Latinoamericano (FFLA) se contactó con la Secretaría Nacional de Planificación y Desarrollo del Ecuador (SENPLADES), para transmitir su experiencia en la prevención y transformación de conflictos socioambientales, se promovió un encuentro entre la sociedad civil y la institución del Estado encargada del diseño de políticas públicas para la planificación estatal, en el marco del mandato constitucional de planificación participativa.

Es así como se iniciaron una serie de encuentros que dieron forma al Manual que ahora se presenta. Los destinatarios/as de este documento son funcionarios públicos que, a lo largo y ancho de Latinoamérica, se enfrentan diariamente …

A Narrowing View: The Sixth Circuit And Bae, Alexander Park

Arbitration Law Review (2009 - Present)

No abstract provided.

Mandatory Process, Matthew B. Lawrence

Faculty Articles

This Article suggests that people tend to undervalue their procedural rights—their proverbial “day in court”—until they are actually involved in a dispute. The Article argues that the inherent, outcome-independent value of participating in a dispute resolution process comes largely from its power to soothe a person’s grievance— their perception of unfairness and accompanying negative emotional reaction—win or lose. But a tendency to assume unchanging emotional states, known in behavioral economics as projection bias, can prevent people from anticipating that they might become aggrieved and from appreciating the grievance-soothing power of process. When this happens, people will waive their procedural rights …

Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong

Faculty Articles

The primary focus of this Article is to analyze various process-oriented and structural issues relating to reasoned awards in international commercial arbitration so as to improve the practical and theoretical understanding of international awards. That discussion, which is found in Section IV, considers various factors from both the common law and civil law perspectives so as to take into account the blended nature of international commercial arbitration.

Of course, to be fully comprehensible, the detailed analysis in Section IV must first be put into context. Therefore, Section II describes the difficulties associated with defining a reasoned award in international commercial …

That's A Wrap: The Ninth Circuit's Failure To Clarify The Enforceability Of Browsewrap And Clickwrap Agreements In Internet Commerce, Ben Colburn

Arbitration Law Review (2009 - Present)

No abstract provided.

International Arbitration & Global Governance: Contending Theories And Evidence, Ryan Thomas

Arbitration Law Review (2009 - Present)

No abstract provided.

Roles For Neutrals In Remedying The School Discipline Gap, Stephen S. Worthington

Arbitration Law Review (2009 - Present)

No abstract provided.

Ethics And Sport Dispute Resolution In Sport: Athletes, Law And Arbitration, Zachary Burley

Arbitration Law Review (2009 - Present)

No abstract provided.

"Who Decides?" The Third Circuit: Class Action Availability Is A Question Of Arbitrability?, Marcus Shand

Arbitration Law Review (2009 - Present)

No abstract provided.

Massachusetts And Oregon Laws Encourage Early Resolution Of Medical Malpractice Claims: Dhhs Threatens To Hinder Reform, Jena Druck

Arbitration Law Review (2009 - Present)

No abstract provided.

Thanks, Obama! "Fair Pay And Safe Workplaces" Come At The Cost Of Mandatory Pre-Dispute Employment Arbitration, Andrew C. Fillmore

Arbitration Law Review (2009 - Present)

No abstract provided.

Confidentiality In Consumer And Employment Arbitration, Christopher R. Drahozal

Arbitration Law Review (2009 - Present)

No abstract provided.

Dreaded Dearth Of Precedent In The Wake Of International Arbitration - Could The Cause Also Bring The Cure?, Ank Santens, Romain Zamour

Arbitration Law Review (2009 - Present)

No abstract provided.

Special Education Arbitration: "Rightness" As A Matter Of Law And Fact?, Stephen S. Worthington

Arbitration Law Review (2009 - Present)

No abstract provided.

Risk Versus Reward: The Increasing Use Of Third Funders In International Arbitration And The Awarding Security For Costs, Kelsie Massini

Arbitration Law Review (2009 - Present)

No abstract provided.

The Role Of The Courts In The New Justice System, Tania Sourdin

Arbitration Law Review (2009 - Present)

No abstract provided.

What's Law Got To Do With It? Plea Bargaining Reform After Lafler And Frye, Cynthia Alkon

Arbitration Law Review (2009 - Present)

No abstract provided.

Investment Treaty Arbitration And Its Future -- If Any, Kaj Hobér

Arbitration Law Review (2009 - Present)

No abstract provided.