Dispute Resolution and Arbitration Commons^™

Does Rigorously Enforcing Arbitration Agreements Promote “Autonomy”?, Hiro N. Aragaki

Indiana Law Journal

In recent years, the U.S. Supreme Court has helped transform arbitration law into a radical private-ordering regime in which freedom of contract has come to eclipse public regulation. Arbitration jurisprudence justifies this transformation in part on a profound and longstanding commitment to the ideal of individual autonomy, understood as the freedom—lacking in litigation—to select a disputing process best suited to one’s needs.

In this Article, I question the cogency of this justification. I argue, first, that autonomy has had different and sometimes conflicting meanings even within arbitration jurisprudence. Second, depending on the meaning one ascribes to autonomy, it is at …

Transcanada Lawsuit Highlights Need To Scuttle Tpp, Jeffrey D. Sachs, Brooke Güven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

The Obama administration is still trying, against the odds, to push the Trans-Pacific Partnership trade and investment agreement (TPP) through the lame-duck session of Congress after the November presidential vote. The administration knows that TPP can’t pass before the election because both Hillary Clinton and Donald Trump oppose it; therefore, they are hoping for a stealth Senate vote between the election and inauguration of the new president in 2017.We can therefore “thank” TransCanada for reminding us why the TPP needs to be scuttled.

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Introduction: Judicial Education, Dispute Resolution, And The Life Of A Judge: A Conversation With Judge Jeremy Fogel, Director Of The Federal Judicial Center, Jeremy Fogel Hon., S. I. Strong

Journal of Dispute Resolution

In January and June 2016, Judge Jeremy Fogel, Director of the Federal Judicial Center, sat down with Professor S.I. Strong to discuss a variety of issues ranging from the civil rules amendments and the case management process to judicial education, mediation and the role of the Federal Judicial Center. Judge Fogel also gave his views on what lawyers, academics and the public need to know about the federal judiciary and the task of judging, thereby providing important and unique insights into the judicial process.

The English Inheritance—What The First American Colonists Knew Of Mediation And Arbitration, Derek Roebuck

Journal of Dispute Resolution

It seems fair to assume that the first American colonists took with them attitudes and practices from home, including the ways in which they routinely resolved disputes. For example, on November 11, 1647 the General Court of the Massachusetts Bay Colony authorized the purchase of Edward Coke’s Reports, First and Second Institutes and Book of Entries, “to the end we may have the better light for making and proceedings about laws.” But does that mean it was natural then for parties with differences to look to litigation for an answer? This Article provides ample evidence of a preference for other …

An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster

Journal of Dispute Resolution

This study examines a legal experiment that occurred during the height of the global financial crisis. As markets from the United States to Europe to the Global South shook, one country – the United Arab Emirates (U.A.E.) – found itself on the brink of economic collapse. In particular, in 2009 the U.A.E.’s Emirate of Dubai (Emirate) was contemplating defaulting on $60 billion of debt it had amassed. Recognizing that such a default would have cataclysmic reverberations across the globe, Dubai’s governmental leaders turned to a small group of foreign lawyers, judges, accountants, and business consultants for assistance. Working in a …

The Faa Vs. The Nlra And The Flsa: Have Courts Given The Faa Too Much Deference?, Nikki Clark

Journal of Dispute Resolution

This Comment will discuss whether courts have given too much weight to the FAA at the cost of making other federal laws such as the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA) less effective. The NLRA and the FLSA are not the only federal laws that stand to be affected by the expanding application of the FAA. The Age Discrimination in Employment Act (ADEA) has also been affected by the FAA.

Mediators Without Borders And The Efficacy Of Community Mediation Centers In Israel And Palestine, Jenna Homeyer

Journal of Dispute Resolution

This Comment will also discuss whether using specific techniques from each center can help restore relations between the people of Israel and Palestine. “[C]ulture is not posited as the cause of conflict, instead, it is intertwined with conflict and the processes of resolution.” What makes each center successful is that they embrace cultural differences. Instead of viewing cultural differences as an obstacle to peace they use cultural norms like Sulha, a traditional Arab way to resolve conflict, to invite peace. Each of these processes maintains a person’s dignity through the resolution process, and helps each party see the opposing party …

Magistrate Judges, Settlement, And Procedural Justice, Nancy A. Welsh

Faculty Scholarship

This Article begins, in Part I, with an overview of magistrate judges’ history and role generally, including a discussion of the mechanism of “blind consent” that must be undertaken before a magistrate judge may conduct a trial. Part I then turns to magistrate judges’ role in settlement and ADR, outlines the procedural and ethical rules governing judges’ role in settlement, and highlights research revealing lawyers’ concerns regarding judges’ role in settlement. In Part II, the Article provides a brief overview of mediation in the federal courts and considers the relationship between judge-hosted settlement sessions and mediation. With this background regarding …

Taking Charge 2016: A Study Of The Strategic Budgeting Priorities Of The Residents Of Lincoln, Nebraska, Lisa M. Pytlikzillig, Addison Fairchild

Lisa PytlikZillig Publications

This report presents the results of the 2016 Taking Charge initiative sponsored by the City of Lincoln. This initiative included an online survey and a half-day, face-to-face, Community Conversation. Most previous Taking Charge activities have focused more narrowly on the immediate concerns of an impending budget proposal (e.g. which specific programs should be funded or discontinued to maintain a balanced budget). This year’s efforts also focused on specific items relevant to the City’s future budget policy priorities. As usual, residents were also given the opportunity to rate the City’s performance and City officials on a variety of performance characteristics.

A …

Mindful “Judging” 1.5: The Science Of Attention, “Lie Detection,” And Bias Reduction – With Kindness, Clark Freshman, Shauna Shapiro, Sarah De Sousa

Journal of Dispute Resolution

This article addresses two overlapping audiences. We’ve written this article partly as a kind of manual like Mindfulness 1.0 for those who suspect they know little and as a resource to convince skeptical others, and the curious or even skeptical parts of ourselves, that mindfulness deserves its newfound, albeit shaky, respect. What is mindfulness and how can mindfulness help us judge, advocate, and negotiate? Judge Fogel’s writing and his position carry weight with many. This Article adds some of the latest research, including brain imaging and carefully controlled studies. We highlight multiple types of data from dramatic increases in working …

State Legislative Update, M. Katherine Kerbs, Katherine E. Mcmurtrey, Courtney Lauer, Theresa Mullineaux

Journal of Dispute Resolution

Mediation is a non-binding type of dispute resolution. Mediation is a process where a neutral, third party with no authoritative decision-making power assists parties in a dispute to voluntarily reach a mutually acceptable agreement. The legal community has encouraged alternative dispute resolution, including mediation. With mediation as the primary alternative dispute resolution type in the federal district courts, it is now even more important that legislation surrounding mediation and confidentiality is created. In fact, over half of the ninety-four federal court districts now offer, and in most instances, require mediation.

Dispute Resolution Tools In Patent Infringement Cases: Aoki V. Gilbert, No. 2:11-Cv02787-Tln-Cnd, 2015 Wl 5734626 (E.D. Cal. 2015), Brandon Craig

Journal of Dispute Resolution

While arbitration has become a widely accepted alternative to litigation, the role it should play in patent disputes has been widely debated. Issued by the federal government, patents confer a temporary monopoly on the production, use, and sale of new innovations. The government may have an interest in keeping such disputes out of the private realm of arbitration, at least when the dispute is over the validity of the patent. For other patent issues such as licensing, which is essentially a private contract, arbitration may serve as a useful and cost-effective alternative. Even when arbitration is not warranted, other useful …

Brexit And Eu Mediation, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the impact Brexit may have on how London is perceived as a venue for cross-border mediation within the EU is analysed.

Trading With Socialist Partners, Josef Rohlik

Georgia Journal of International & Comparative Law

No abstract provided.

Foreign Investment Protection And Icsid Arbitration, Charles Vuylsteke

Georgia Journal of International & Comparative Law

No abstract provided.

Where The “Puck” Is Going – And What Faculty Should Do To Help Students Get There, John Lande

Faculty Blogs

This post summarizes presentations and discussion at a program of the ABA Section of Dispute Resolution’s annual Legal Educators’ Colloquium. The conversation addressed anticipated changes that might affect legal and dispute resolution practice, how practice might change as a result, and how these changes could affect people’s teaching.

International Law - Justiciability - Appellants Have Standing To Seek Injunction Against United States Trade With Southern Rhodesia, But Their Suit States A Claim Incapable Of Judicial Resolution, George Shingler

Georgia Journal of International & Comparative Law

No abstract provided.

The Standard Investment Agreement: Text And Comments, Philippe Kahn

Georgia Journal of International & Comparative Law

No abstract provided.

Conference Summary: Problems And Prospects Of Trade With Eastern Europe And China, Chesterfield H. Smith, William C. Mott, William J. Casey, Philip M. Landrum, Jacobus T. Severiens, Dean Rusk, Evgeniy V. Bugrov, Andrzej B. Burzynski, Gabriel M. Wilner, Peter M. Flanigan, Benjamin Busch, Victor Hoa Li, Graham Metson, Donald Clark, Reg Murphy, Charles Hodgkins, C.C. Van Den Heuvel, Jeremy Russell, David Winter

Georgia Journal of International & Comparative Law

No abstract provided.

International Fisheries Regulation, John P. Rivers

Georgia Journal of International & Comparative Law

No abstract provided.

Arbitrating Estoppel: Equitable Estoppel In Arbitration Contracts, Nicholas Oleski

Cleveland State Law Review

The Sixth Circuit and the district courts within the circuit have held that non-signatories to arbitration contracts may be compelled to arbitrate under the Federal Arbitration Act—even though they are not signatories to the arbitration contract. These courts reason that the non-signatories must arbitrate their claims because of an equitable estoppel theory. Although the Federal Arbitration Act displaces most state law regarding arbitration, the Supreme Court has held that federal courts must use state contract law to determine who is bound by an arbitration contract. This Note examines state contract law in the Sixth Circuit on equitable estoppel and concludes …

Magistrate Judges, Settlement, And Procedural Justice, Nancy A. Welsh

Nevada Law Journal

No abstract provided.

Integrated Conflict Management Design Workbook : كتاب التصميم المتكامل لإدارة الخلافات (Arabic), Nadja Alexander

Research Collection Yong Pung How School Of Law

Mediation Series is a set of three guides that will help policy-makers, organizations and practitioners build mediation practice and culture. The Series include Mediation Essentials, Integrated Conflict Management Design Workbook, and Making Mediation Law. Mediation Essentials serves as a complete orientation guide to ADR in general and to mediation. Making Mediation Law offers a robust perspective on how to design mediation policy and legislation. Guidance in this area is in high demand and scarce (besides the UNCITRAL Model Law on International Commercial Conciliation and its Guide, there aren’t many other comprehensive resources). We hope that Making Mediation Law will effectively …

Integrated Conflict Management Design Workbook : كتاب التصميم المتكامل لإدارة الخلافات (Arabic), Nadja Alexander

Research Collection Yong Pung How School Of Law

Mediation Series is a set of three guides that will help policy-makers, organizations and practitioners build mediation practice and culture. The Series include Mediation Essentials, Integrated Conflict Management Design Workbook, and Making Mediation Law. Mediation Essentials serves as a complete orientation guide to ADR in general and to mediation. Making Mediation Law offers a robust perspective on how to design mediation policy and legislation. Guidance in this area is in high demand and scarce (besides the UNCITRAL Model Law on International Commercial Conciliation and its Guide, there aren’t many other comprehensive resources). We hope that Making Mediation Law will effectively …

Micro-Housing In Seattle: A Case For Community Participation In Novel Land Use Decisions, Patrick Carter

Seattle University Law Review

Rather than relying solely on the formal interpretations of government regulators invited by the structure of local zoning ordinances, the City of Seattle should adopt a process that invites community-based mediation and problem-solving when a significant shift in housing density is contemplated in a developer’s proposal. Greater resident participation in development projects allows the City of Seattle to better support those residents in their reliance interests arising from zoning ordinances while simultaneously furthering the policies that underpin urban zoning. This is especially true when such development projects raise the possibility of substantial impacts on the character of a community or …

Book Review: The Concept Of Custom In International Law. By Anthony A. D’Amato. Ithaca & London: Cornell University Press, 1971. Pp. Xvi, 286. $9.50., John F. T. Murray

Georgia Journal of International & Comparative Law

No abstract provided.

Contracts - Jurisdiction - Absent A Strong Showing Of Unreasonableness Or Undue Influence, Parties’ Contractual Selection Of Forum In International Transactions Will Be Valid And Enforceable, Shelley Himel

Georgia Journal of International & Comparative Law

No abstract provided.

The Judicial Dilemma O’Callahan V. Parker Presents To Sofa’S, Ernest V. Harris

Georgia Journal of International & Comparative Law

No abstract provided.

Silence Gives Consent, Phillip C. Jessup

Georgia Journal of International & Comparative Law

No abstract provided.