Dispute Resolution and Arbitration Commons^™

Will They Stay Or Will They Go? An Examination Of South Africa’S International Invest Arbitration Policy, Taylor Bates

Brooklyn Journal of International Law

In 2018, South Africa’s much debated Protection of Investment Act, 2015 went into effect. Designed to replace the state’s bilateral investment treaties, the Act signified a radical shift in South Africa’s attitude towards international investment policy. South Africa’s decision to terminate its bilateral investment treaties is part of a larger, ongoing discussion surrounding investor-state dispute resolution reform. This Note seeks to examine South Africa’s Protection of Investment Act, 2015, its proposal for investor-state dispute settlement reform to Working Group III, and its comments during investor-state dispute settlement reform meetings, through the lens of Albert Hirschman’s Exit, Voice, and Loyalty theory. …

The Singapore Convention On Mediation: A Brave New World For International Commercial Arbitration, Robert Butlien

Brooklyn Journal of International Law

Mediation is a form of alternative dispute resolution (“ADR”) where a negotiation is facilitated by a neutral third party. The key feature of mediation is its voluntary nature. Whether it is used to resolve a family law, employment law, or complex international commercial dispute, mediation is always valuable due to its speed, cost, and ability to maintain relationships between parties when compared to conventional litigation. Despite these benefits, international commercial mediation in particular had previously faced one notable weakness: the lack of enforceability of mediation settlement agreements (“MSA”). The United Nation’s Convention on International Mediated Settlement Agreements Resulting from Mediation …

Libertad For All? Why The Helms-Burton Act Is An Empty Promise Of “Freedom” For The Cuban People., Cristina L. Lang

Brooklyn Law Review

After the Cuban Revolution, the Castro government nationalized the property of many American nationals, which served as a justification for the Kennedy administration’s decision to institute a general economic embargo on Cuba. This embargo was officially codified in the late 1990s in the Cuban Liberty and Democratic Solidarity (Libertad) Act, enacted by President Bill Clinton. Title III of this Act was suspended since its enactment. By creating a private cause of action for American nationals to sue “traffickers” of their improperly nationalized Cuban property, Title III aims to deter foreign investment into Cuba and compensate American citizens whose Cuban property …

Merging Mediation Models – And Other Lessons, John Lande

Faculty Blogs

This post offers suggestions for teaching about mediation practice without focusing primarily on the problematic traditional mediation theories described in Section 3.C. It suggests that faculty (1) help students understand dynamics related to assessments of court outcomes, (2) teach students to strategically combine elements from the traditional models, (3) teach them how to manage the counteroffer process, (4) include lawyer-client relationships in simulations, and (5) use longer simulations including preparation for mediation sessions.

Arbitration (Tahkim) And Reconciliation (Sulh) In Islam As Alternative Dispute Resolution Mechanisms, Saidilyos Khakimov

The Light of Islam

The main reason behind this work is to illustrate the current need for Islamic alternative dispute resolution methods and offer analysis to show the benefts of their applications. There has been a vivid rise in ADRs’ recognition globally as a substitute for litigation and related issues that would be better if addressed with an Islamic perspective. The wide usage of the term has been intensifed uninterruptedly after the second half of the 20th century. This paper intends to introduce a 1,5-centuryyear-old background of legally institutionalized arbitration
(Tahkim) and reconciliation (Sulh), Islamic means or ways of alternative dispute resolution. I will …

The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas

Pace International Law Review

The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while …

Lira In Criminal Cases, John Lande

Faculty Blogs

This post describes how the LIRA framework can be adapted in criminal cases and used in plea bargaining. It suggests how to calculate and use bottom lines in these cases.

Concepts That Can Help Practitioners Help Parties Make Decisions In Disputes, John Lande

Faculty Blogs

A fundamental purpose of dispute resolution practitioners is to help people make decisions about processes, procedures, and issues in managing their conflicts. This post lists concepts to help people make decisions about the choice of dispute resolution process, specific procedures in a given process, and resolving issues in dispute. In resolving disputes, people should consider the value of plausible options and the future tangible costs and intangible costs and interests of continuing the dispute. The post lists specific cognitions, possible actions, and practitioner interventions promoting good decision-making.

Lamps Plus, Inc. V. Varela: Dark Times Ahead For Class Arbitrations, Joanna Niworowski

University of Miami Law Review

The Federal Arbitration Act (“FAA”) was enacted in 1925 to combat judicial hostility towards arbitration. Over the years, the U.S. Supreme Court has interpreted this statute as evidencing a pro-arbitration policy and has upheld the use of arbitration clauses in a variety of contracts. Unfortunately, while the FAA was able to overcome the hostility towards arbitration, it was not able to stop the Court from finding a new target: class arbitrations.

This Comment analyzes the Supreme Court’s recent decision in Lamps Plus, Inc. v. Varela. In critiquing the Court’s continued erosion of the availability of class arbitrations, this Comment considers …

Evolution Of A Field: Personal Histories In Conflict Resolution, Howard Gadlin, Nancy A. Welsh

DRI Press

This book features 23 chapters written by founders, thinkers, inventors, reformers, disrupters and transformers in the field of conflict resolution, thus allowing readers to explore the field’s real, on-the-ground reasons for being and evolving. The contributors include mediators, facilitators, arbitrators, ombuds, academics, system designers, entrepreneurs, leaders of conflict resolution organizations, researchers, advocates for conflict resolution, and critics of conflict resolution. They share their personal and professional stories as well as the values, aspirations and characteristics of the field that inspired them to become involved in conflict resolution, develop their careers, and both influence and wrestle with the field’s evolution.

Contributors …

A Litigator’S Guide To The Galaxy: A Look At The Pragmatic Questions For Adjudicating Future Outer Space Disputes, Michael J. Listner, Joshua T. Smith

Vanderbilt Journal of Entertainment & Technology Law

Since the beginnings of the space age, outer space activities have been the realm of government with ancillary involvement by non-governmental actors. The international legal framework for outer space contemplated the involvement of non-governmental actors, but in creating dispute resolution mechanisms the role of non-governmental entities was not considered ripe. The surge of direct non-governmental involvement in outer space activities in recent years again raises the issue of dispute resolution and exemplifies the lack of dispute resolution mechanisms designed to address differences between sovereign states. As the pace of non-governmental activity increases, so does the likelihood of disputes arising between …

Seven Keys To Unlock Mediation’S Golden Age: The Introduction, Nadja Alexander, Lela P. Love

Research Collection Yong Pung How School Of Law

Mediate.com has published a series of peer reviewed articles under the collective title Seven Keys to Unlock Mediation’s Golden Age. The objective of the Seven Keys is to encourage discussion among all stakeholders on navigating mediation’s best future. The seven keys are: Leadership, Data, Education, Profession, Technology, Government and Usage. Each key has between two and four articles, each no more than 1,200 words in length, contributed by some 40 leading authors around the world. Professors Nadja Alexander and Lela P. Love introduce the series with “Imagine.” The Seven Keys articles portray a variety of images and understandings of mediation. …

Mediating Consumer Financial Disputes: Financial Industry Disputes Resolution Centre's Unique House Style, Eunice Chua, Beverly Wee

Research Collection Yong Pung How School Of Law

The Financial Industry Disputes Resolution Centre (“FIDReC”) was established in August 2005 with the purpose of providing a low-cost avenue for consumers to resolve their disputes with financial institutions. This article seeks to outline the role of FIDReC and its processes and, at the same time, seeks to define the house style of mediation that has served FIDReC well over the years. This article also highlights some of the different techniques adopted by FIDReC mediators in the course of facilitating the mediation.

Mediation And Appropriate Dispute Resolution, Nadja Alexander, Shou Yu Chong

Research Collection Yong Pung How School Of Law

2019 was a significant year for mediation. On 7 August 2019, 46 states – an unprecedented number – came together in Singapore to sign the United Nations Convention on International Mediated Settlement Agreements Resulting from Mediation (“Singapore Convention”). The Convention, which comes into force on 12 September 2020, provides a legal framework for the recognition and enforcement of mediated settlement agreements across borders and thereby addresses one of the major criticisms of international mediation, namely, the lack of an internationally recognised expedited enforcement mechanism. The Singapore Convention aims to be for mediation what the Convention on the Recognition and Enforcement …

Problems With Teaching “Integrative” Negotiation, John Lande

Faculty Blogs

This post responds to Debra Berman’s piece, Is Our Over-Emphasis on Integrative Negotiation Pedagogy Falling Short of Reality? My answer is “yes.” Much – perhaps most – negotiation and mediation of civil cases these days in the US involves a counteroffer process where lawyers focus almost exclusively on allocating money based on a zero-sum assumption. So if our courses focus too much on interests-and-options processes, students get a misimpression about the frequency of what happens in the real world. If we don’t prepare them to operate effectively in practice, they will be in for a rude surprise after they graduate. …

Nine Justices And #Metoo: How The Supreme Court Shaped The Future Of Mandatory Arbitration And Sexual Harassment Claims, Tamra J. Wallace

Maine Law Review

When the Federal Arbitration Act was signed into law in 1925, none would have guessed it would be used to perpetuate a system of silence surround workplace sexual harassment. With the Supreme Court’s continued stance to liberally applying the Act to uphold arbitration agreements contained within employment agreements over the past decades, it is apparent that any change needed to protect vulnerable workers will need to come from federal legislation. The rise of the #MeToo movement across the nation, and throughout various employment sectors, may be the push needed to bring about the necessary change.

A Message For Law Students To Prepare Themselves For Legal Practice, John Lande

Faculty Blogs

This post includes suggestions to help plan self-directed learning to supplement what students learn in law school. It recommends that students (1) appreciate the values and limitations of the law, (2) recognize the “hidden curriculum” in law school, (3) understand that “thinking like a lawyer” really is about helping clients achieve their goals, (4) develop a strategic plan for their education, (5) compile a portfolio, (6) take clinical, externship, and practice courses, (7) interview practitioners, and (8) join the ABA and other bar and professional associations.

You Really Should Know About Kris Franklin, John Lande

Faculty Blogs

This post profiles New York Law School Professor Kris Franklin. She teaches a negotiating, counseling, and interviewing course, which she says really should be called “Client Representation and Case Handling.” Her course on family law practice teaches all the family law doctrine covered in traditional family law courses but she does it exclusively using simulations. In contrast to my suggestion for renaming law school as “negotiation school,” she suggests calling it “legal problem-solving school,” which I think is even better.

Study Finds That Law Schools Fail To Prepare Students To Work With Clients And Negotiate, John Lande

Faculty Blogs

This post provides excerpts from the Building a Better Bar study about new law school graduates’ unmet instructional needs. The study found that new lawyers were “woefully unprepared” to work with clients. They had difficulty (1) communicating with clients, (2) managing expectations, (3) breaking bad news, (4) coping with difficult clients, (5) negotiating with counterparts and clients, and (5) understanding the “big picture” of client matters.

Need For Clear Language Initiative To Un-Babel Our Models, John M. Lande

Faculty Blogs

Professional jargon is helpful in some fields because it promotes communication between professionals like brain surgeons and rocket scientists.

But jargon is extremely problematic for dispute resolution because it confuses and excludes laypeople and other stakeholders.

Briefing Note: Aligning International Investment Agreements With The Sustainable Development Goals, Lise Johnson, Lisa E. Sachs, Nathan Lobel

Columbia Center on Sustainable Investment Staff Publications

Policy makers and other stakeholders are currently asking fundamental questions about whether and to what extent international investment agreements (IIAs) are consistent with and are helping to advance sustainable development objectives at home and abroad.

A 2019 paper from CCSI examines the alignment of IIAs with the 2030 Sustainable Development Agenda, arguing that while FDI will play an important role in advancing development outcomes, existing treaties must be reformed and future IIAs reimagined in order to achieve deep alignment with the sustainable development goals.

The paper proposes that IIAs should be designed and evaluated with respect to their ability to …

Vedanta Resources Holdings Limited V Zccm Investment Holdings Plc And Konkola Copper Mines Plc, Caz/08/249/2019, Sangwani Patrick Ng’Ambi, Chanda Chungu

SAIPAR Case Review

No abstract provided.

Zccm Investment Holdings Plc V Konkola Copper Mines Plc And Vedanta Resources Holdings Ltd 2019/Hp/0761, Sangwani Patrick Ng’Ambi

SAIPAR Case Review

No abstract provided.

Vedanta Resources Holding Limited V Zccm Investment Holdings Plc And Konkola Copper Mines Plc Caz 08/249/2019, Muna B. Ndulo

SAIPAR Case Review

No abstract provided.

Regulating Multinational Corporations In International Investment Law And Arbitration: Towards Limiting The Treaty Shopping, Sharaf Khaled Alsharaf

Maurer Theses and Dissertations

This study examines the limitations of treaty shopping in international investment law and arbitration by recognizing some steps and factors that states, especially developing states, and arbitral tribunals may consider regarding the purpose and objective of investment agreements and contracting states’ viewpoints. The focus is solely on the multinational corporation as a corporate investor. To understand these limitations, this study has divided the topic through three separate research questions. The first question is how a state can regulate MNCs in a way that limits their ability to practice treaty shopping, whether domestically or internationally via BITs or regional investment agreement, …

Arbitration Waiver And Prejudice, Timothy Leake

Michigan Law Review

Arbitration agreements are common in commercial and consumer contracts. But two parties can litigate an arbitrable dispute in court if neither party seeks arbitration. That presents a problem if one party changes its mind and invokes its arbitration rights months or years after the lawsuit was filed and substantial litigation activity has taken place. Federal and state courts agree that a party can waive its arbitration rights by engaging in sufficient litigation activity without seeking arbitration, but they take different approaches to deciding how much litigation is too much. Two basic methods exist. Some courts say waiver requires the party …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

The Singapore Convention On Mediation And The New York Convention On Arbitration: Comparing Enforcement Mechanisms And Drawing Lessons For Asia, Eunice Chua

Research Collection Yong Pung How School Of Law

This article considers the enforcement mechanism for international mediated settlement agreements proposed by the Singapore Convention on Mediation and critically examines this mode of enforcement as against enforcement as an arbitral award in Asia, including through a hybrid process like Arb-Med-Arb. Similarities and differences between the New York Convention and the Singapore Convention on Mediation will be discussed and used to consider how Asian jurisdictions may respond to the Singapore Convention on Mediation and what lessons may be learnt from the arbitration context.

Unwaivable: Public Enforcement Claims And Mandatory Arbitration, Myriam E. Gilles, Gary Friedman

Articles

This essay, written for a conference on the “pathways and hurdles” that lie ahead in consumer litigation, is the first to examine the implications of California’s recent jurisprudence holding public enforcement claims unwaivable in standard-form contracts of adhesion, and the inevitable clash with the U.S. Supreme Court’s decisional law interpreting the Federal Arbitration Act. With its rich history of rebuffing efforts to deprive citizens of public rights through private contract, California provides an ideal laboratory for exploring this escalating conflict.

Table Of Contents, Antonio Medina-Rivera, Lee F. Wilberschied Ph.D.

Cultural Encounters, Conflicts, and Resolutions

No abstract provided.