Dispute Resolution and Arbitration Commons^™

The Scrivener's Dilemma In Divorce Mediation: Promulgating Progressive Professional Parameters, Robert K. Collins

Cardozo Journal of Conflict Resolution

This Article starts with an examination of one state's relatively recent contribution to the controversy over divorce mediator drafting, and then tours the nation to illuminate the confusing array of approaches to this issue that have been adopted in different jurisdictions. It then steps back to examine the role that lawyers have traditionally played in assisting or impeding access to justice for divorcing couples, and explores why divorce mediation can now offer a more appropriate approach than classic lawyering to marital reorganization. It concludes with an endorsement of attorneymediators acting as scriveners for their clients, and explores an approach that, …

Enactment Of Apology Legislation In Hong Kong: Report And Second Round Consultation, Lisa Wong, Kit Wah Cecilia Wong Ng, Hing Cheung Thomas Au, Nadja Alexander, Lok Kwan David Dai, Hing Fung Leung, Wai Hung Francis Law, Queenie Lau, Ting Kwok Iu, Shing Ping James Chiu, Shahla Ali, Michael Beckett, Thomas Edward Kwong

Research Collection Yong Pung How School Of Law

Nadja Alexander was contributor to the Report of the Department of Justice of Hong Kong as Chair of the Working Group.In the report published by the Working Group on Mediation of the Department of Justice in 2010, it was recommended, among others, that the question of whether there should be an apology or legislative provisions dealing with the making of apologies for the purpose of enhancing settlement deserves further consideration. In 2012, for Secretary for Justice established the Steering Committee on Mediation ("Steering Committee") with a view to further promoting the development of mediation in Hong Kong. The regulatory Framework …

A Turning Point For The Mediation Profession – Or A Slippery Slope?, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, issues affecting practitioners in the mediation profession are explored.

The Hopes And Fears Of All The Years: 30 Years Behind And The Road Ahead For The Widespread Use Of Mediation, Lela P. Love, Ellen A. Waldman

Articles

Looking through the windshield in 1985, the dispute resolution community was enthusiastic about mediation's promise: the promise of a radically different paradigm premised on party-driven resolution and collaborative decision-making. Peering ahead, mediation's pioneers anticipated a quiet revolution in conflict management toward more therapeutic and democratic processes. What do events in the last three decades tell us about the high and low points — the successes and failures — in the journey of that endeavor? Looking forward, how might we best align reality with our highest aspirations and avoid the disappointing troughs we encountered in those past decades? This article addresses …

Military Activities In The Unclos Compulsory Dispute Settlement System: Implications Of The South China Sea Arbitration For U.S. Ratification Of Unclos, Lori Fisler Damrosch

Faculty Scholarship

The Award on the Merits in the South China Sea Arbitration between the Philippines and China (Award) is the first decision of any tribunal to interpret the provision of the 1982 United Nations Convention on the Law of the Sea (Convention or UNCLOS) that allows states parties to exclude disputes concerning military activities from the Convention’s compulsory dispute settlement regime. That optional exclusion, embodied in Article 298(1)(b) of the Convention, was a central component of the strenuously-negotiated compromise between states that favored compulsory jurisdiction in principle and those that would have preferred a strictly optional system for third-party legal dispute …

The Yukos Annulment: Answered And Unanswered Questions, George A. Bermann

Faculty Scholarship

On April 20, 2016, a Dutch court issued a major judgment annulling awards rendered in a dispute between the Russian Federation and three majority shareholders of the former giant Russian oil producer, OAO Yukos Oil Company (“Yukos”). The annulment by a national court of any investor-State award is always of great moment, but it was particularly so in the case of an award in excess of $50 billion. Discussion of the judgment has understandably occupied much of the international arbitration blogosphere.

After setting out the basic facts of the case, this piece briefly describes the position that the Tribunal had …

"International Standards" As A Choice Of Law Option In International Arbitration, George A. Bermann

Faculty Scholarship

A steady preoccupation of international arbitration has been the extent to which international arbitral tribunals should distance themselves in their conduct and practices from the conduct and practices of national courts. That distance is noticeably variable as one moves from one aspect of the adjudicatory process to another. Variable as well among aspects of the adjudicatory process is the degree of consensus as to what that distance on any given issue should be.

The Day Doctrine Died: Private Arbitration And The End Of Law, Myriam E. Gilles

Articles

This story begins in 1980, when a budding anti-lawsuit movement found an energetic champion in a new conservative President. Over time, the movement became a dominant feature of political life, as its narrative of activist judges, jackpot justice, and a thriving lawsuit industry stirred partisan passions. And yet, some thirty years on, it is clear that the primary legacy of the anti-lawsuit movement is the movement itself--not legislative achievements, which have been few and far between, but committed adherents, including future Supreme Court Justices, lower court judges, and business leaders.

Meanwhile, and also in the early 1980s, federal courts began …

Ask For The Moon, Settle For The Stars: What Is A Reasonable Period To Comply With Wto Awards?, Petros C. Mavroidis, Niall Meagher, Thomas J. Prusa, Tatiana Yanguas

Faculty Scholarship

The World Trade Organization (WTO) dispute settlement process allows a defending Member a “reasonable period of time” (RPT) to implement any findings that its contested measures are inconsistent with WTO law. If agreement on this RPT cannot be reached, Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) provides for the possibility of arbitration on the length of the RPT. The DSU provides limited guidelines on the RPT, stating only that it should not normally exceed 15 months. In practice, Arbitrators have developed the standard that the RPT should reflect the shortest possible period …

Dispute Settlement In The Wto: Mind Over Matter, Petros C. Mavroidis

Faculty Scholarship

The basic point I advocate in this paper is that the WTO Dispute Settlement System aims to curb unilateralism. No sanctions can be imposed, unless if the arbitration process is through, the purpose of which is to ensure that reciprocal commitments entered should not be unilaterally undone through the commission of illegalities. There are good reasons though, to doubt whether practice guarantees full reciprocity. The insistence on calculating remedies prospectively, and not as of the date when an illegality has been committed, and the ensuing losses for everybody that could or could not be symmetric, lend support to the claim …

Trust And The Srba Mediation, Francis E. Mcgovern

Faculty Scholarship

No abstract provided.