Dispute Resolution and Arbitration | Open Access Articles

What Users Say About International Mediators And Mediation Institutions: Part 2, Nadja Alexander, Allison Goh

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the key factors that influence users' choice of mediation institution and choice of the mediator are explored.

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Why And How Users Make Choices In International Dispute Resolution: 2020 Sidra Survey, Nadja Alexander, Allison Goh

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the experiences and views of legal and client users from common and civil law jurisdictions on why and how they choose dispute resolution mechanisms to resolve cross-border disputes are analysed.

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Batna’S Got To Go — And Here’S A Better Idea, John M. Lande

Faculty Blogs

BATNA et al. are examples of popular terms that are widely misunderstood. In particular, while BATNAs really are courses of action (like going to trial or making a deal with a different party), people often confuse them with the expected values of those courses of action (like the trial outcome or profit from a deal).

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Hearing On The Foreign Sovereign Immunities Act, Coronavirus, And Addressing China’S Culpability Before The Senate Committee On The Judiciary, Russell A. Miller

Scholarly Articles

There are a number of theories about the Chinese government’s acts or omissions concerning the emergence and world-wide spread of the coronavirus that may be the proximate cause of actionable transboundary harm. All of these theories start with the incontestable fact that the coronavirus outbreak originated in China. One theory is concerned with the conduct of the Chinese government after the health crisis emerged. This “ex post” theory alleges a broad range of acts and omissions that helped transform a local outbreak into a global pandemic. There is room for this theory under the Transboundary Harm Principle. But the “ex …

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Interpretation Of Article V Of The New York Convention In The Eleventh Circuit: Industrial Risk Insurers, Juan C. Garcia, Ivan Bracho Gonzalez

University of Miami Law Review

The widespread use and growing preference for international arbitration over cross-border litigation is primarily due to the existence of a clear and straightforward regime for the enforcement of arbitration agreements and awards. Even though this was not always the case, through the appearance of the New York Convention and the United Nations Commission on International Trade Law (“UNCITRAL”) Model Law on International Commercial Arbitration, the treatment and acceptance of international arbitration in different legal regimes has undergone a harmonization process which has served to develop consistency. That harmonization process, however, has not been completed. Several jurisdictions, even within their own …

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A Cure For Every Ill? Remedies For “Pathological” Arbitration Clauses, Harout J. Samra, Ramya Ramachanderan

University of Miami Law Review

Defective arbitration and dispute resolution clauses—widely called “pathological clauses”—may undermine parties’ intent to seek recourse to arbitration rather than the courts. Questions concerning the existence and validity of arbitration clauses are subject to state contract law despite the wide sweep of the Federal Arbitration Act. This Article examines selected common “pathologies” and reviews recent court decisions, including from the Eleventh Circuit Court of Appeals and its constituent federal district courts, concerning the enforcement of such clauses.

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Mediate.Com Publishes “Seven Keys To Unlock Mediation’S Golden Age”, John Lande

Faculty Blogs

Mediate.com published a series entitled Seven Keys to Unlock Mediation’s Golden Age. The objective is to encourage discussion among stakeholders about navigating mediation’s best future. The seven keys are: Leadership, Data, Education, Profession, Technology, Government and Usage. Descriptions of each “key” has two to four short articles.

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Resources For Teaching About Batna, Bottom Lines, And Lira, John Lande

Faculty Blogs

Practically every negotiation, mediation, and ADR survey course teaches students that they should figure out their BATNA when negotiating or mediating. This is much easier said than done. This post provides lots of resources to help faculty teach students about BATNAs and – more importantly – about bottom lines. For additional publications about these topics, see Sections 3.A and 5.

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Decision-Making As An Essential Element Of Our Field, John M. Lande

Faculty Blogs

This post suggests that we think of our work as focused on process design, strategy, and decision-making in managing conflict. Our field seeks to help parties solve problems when they lack good (or sometimes any) practical dispute resolution options. This post describes such situations and identifies strategies to increase and improve parties’ decision-making.

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The Prodigal Son Comes Home: Ecuador Returns To Investment Arbitration, Gilberto Guerrero-Rocca

Faculty Publications

No abstract provided.

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Mass Torts: Dispute Resolution In France And The United States--The Vioxx And Mediator Cases Compared, Fred Einbinder Mr.

Washington International Law Journal

Dispute resolution in legal systems has largely been designed for handling issues between small groups of individuals or organizations. Obtaining legal redress for those injured by mass torts and using the law as a means to prevent future occurrences has presented challenges for the development of effective dispute resolution mechanisms to obtain relief for plaintiffs and deter future tortfeasors. A comparison of French and American mass tort law and practice offers a fertile field for useful comparative study given the significant differences in approach taken by each country’s legal system. These differences derive as much from history, politics, the attitudes …

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Reflections: Weaving Threads To Strengthen The Fabric Of Our Communities, Sharon Press

DRI Press

This publication primarily contains pieces written by participants in the Dispute Resolution Institute’s (DRI) 2017 Symposium entitled: An Intentional Conversation About Public Engagement: Weaving Threads to Strengthen the Fabric of our Communities. The Symposium was the second one devoted to public engagement and followed the 2015 biennial symposium entitled An Intentional Conversation About Public Engagement and Decision Making: Moving from Dysfunction and Polarization to Dialogue and Understanding. Articles from 2015 Symposium were published in the Mitchell Hamline Law Review. The Symposium and Reflections were generously funded by a grant from the American Arbitration Association- International Centre for Dispute Resolution …

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An Inquiry Into The Scope Of Mfn Provisions In Bilateral Investment Treaties, Amit Kumar Sinha

Brooklyn Journal of International Law

This article inquires into the scope of MFN treatment in Bilateral Investment Treaties. The article primarily analyzes the ways in which MFN treatment may be extended to foreign investors; this includes extending favorable treatment to a foreign investor in cases of internal/domestic measures and borrowing more favorable provisions from third-party BITs. This article attempts to shed light on the interpretation and dynamics of the use of MFN provisions for internal measures. It also delves into the rationale for borrowing provisions from third-party BITs. It further presents a critique of various tribunals’ decisions and scholarly discussions and writings that deal with …

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Kosovo's Controversial 100 Percent Tariff: An Analysis Of Its Imposition And The Issues Bleeding Into The Conflict Between Kosovo And Serbia, Ernira Mehmetaj

Brooklyn Journal of International Law

On November 6, 2018, Kosovo imposed a 10 percent tariff on products imported from Serbia and Bosnia and Herzegovina. Later that month, on November 28, 2018, after Kosovo was denied membership in the International Criminal Police Organization, Kosovo increased the custom tariffs on Serbian and Bosnian goods from 10 to 100 percent. These actions resulted in a standstill of the European Union–mandated Belgrade-Pristina dialogue—a dialogue seeking to normalize the relations between the two states. Having the tumultuous history shared by Kosovo and Serbia as a backdrop, this Note analyzes the international agreements Kosovo is party to, specifically the Central European …

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The Evolving Concept Of Access To Justice In Singapore’S Mediation Movement, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

This article examines the key societal developments underpinning the growth of mediation in Singapore with the view to analysing the evolving conceptualisation of justice within mediation. The introduction of mediation corresponded with a shift from adversarial justice to an indigenous form of conciliatory justice, in which a respected mediator played an advisor role to the disputants and was trusted to ensure the fairness of the process. However, this trajectory was tempered by the need to ensure that Singapore mediation practice conformed with international practices concerning the protection of parties’ autonomy. The ambivalence concerning the mediator’s role has resulted in uncertainty …

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How To Play “Friendly Hardball” In A Negotiation, Michael Schaerer, Martin Schweinsberg, Roderick I. Swaab

Research Collection Lee Kong Chian School Of Business

Negotiation experts have long advised a win-win approach focused on extracting mutual value. This approach effectively turns counterparties into collaborators instead of adversaries, pooling their creative resources to “expand the pie” rather than fighting over the size of their respective slices. Not only does this create more financial value for everyone, it also has interpersonal benefits: Business relationships are stronger after thenegotiation if all parties walk away happy with the outcome.

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The International Claims Trade, Kathleen Claussen

Cardozo Law Review

Investments are mobile in the twenty-first century international economy. They are seldom held for their duration by a single owner from a single country. They change hands and they do so for a variety of reasons, often in the course of a dispute. But the scholarship addressing what happens when international investments and legal claims against sovereigns regarding those investments change hands appears only at the margins. The practice of buying and selling claims or claims trading is well known and institutionalized in some areas of domestic litigation. For cross-border investment disputes against sovereigns, however, many of the cases discussing …

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Tax And Arbitration, William W. Park

Faculty Scholarship

When fiscal measures intertwine arbitration, undue mystification sometimes follows. To enhance analytic clarity, tax-related arbitration might be divided into three parts. The first derives from ordinary commercial disputes that become laced with incidental tax questions. A corporate acquisition, for example, might carry tax consequences which in turn implicate contract claims or defences presented to an arbitral tribunal for resolution. The second genre of tax-related arbitration arises in respect of cross-border investment disputes. Rightly or wrongly, foreign investors often perceive host-country fiscal enactments as discriminatory, unfair, or tantamount to expropriation, thus violating international commitments. Finally, arbitration comes into play under income …

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In Conspicuous Terms-- Arbitration Agreements For The Modern Reasonable App User, Michelle Dunbar

William & Mary Business Law Review

Two recent decisions regarding the validity of arbitration agreements in mobile apps have come to opposite conclusions despite utilizing the same legal standard and concerning the same app—Uber. While the Federal Arbitration Act strongly favors the validity and importance of arbitration agreements, it appears that judge’s subjectivity based on common knowledge and understanding of apps is influencing the outcome of cases concerning the validity of these arbitration agreements. To the modern app user, are these terms really inconspicuous? For businesses, this could mean that instead of competing in an already saturated app market by enhancing their design and integrating branding …

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Measuring "Access To Justice" In The Rush To Digitize, Amy J. Schmitz

Faculty Publications

Access to Justice (A2J) is the hot topic of the day, energizing Twitter and judges alike. Meanwhile, professors and policymakers join in song, singing the praises of online dispute resolution (ODR) as means for expanding A21. This is because ODR uses technology to allow for online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, condominium, landlord/tenant, personal injury, debt collection, and even divorce claims online. The hope is that online triage and dispute resolution systems will provide means for obtaining remedies for self-represented litigants (SRLs) and …

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Arbitration Archetypes For Enhancing Access To Justice, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

In the second half of the twentieth century, the use of arbitration proliferated in the United States as part of a greater alternative dispute resolution (ADR) movement, with the promise that using ADR processes would, among other things, enhance disputants' access to justice. Arbitration offers disputing parties a process to resolve their dispute, which, at least in theory, is known for decreased cost, increased speed, party control, privacy, and finality. These characteristics generally enhance parties' access to justice because, as compared to litigation, barriers to entry are lower, outcomes are delivered more quickly, substantive outcomes are more equitable, and parties …

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Arbitrarily Selecting Black Arbitrators, Michael Z. Green

Fordham Law Review

Calls for increased diversity among arbitrators have surged with the growth of the employer movement, so-called mandatory arbitration, which requires employees to agree to arbitrate employment discrimination matters as a condition of employment. Despite good-faith efforts by neutral service providers, civil rights organizations, bar associations, and employer and employee groups to identify and address the need for more diverse arbitrators in mandatory arbitration, many commentators still lament that this diversity problem reflects negatively on access to justice. With the #MeToo movement’s focus in recent years on the lack of a public and transparent resolution for sexual harassment matters, as well …

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Remedy Without Diagnosis: How To Optimize Results By Leveraging The Appropriate Dispute Resolution And Shared Decision-Making Process, Mariana Hernandez-Crespo Gonstead

Fordham Law Review

This Article aims to realize the untapped potential of the dispute resolution field beyond traditional understandings of access to justice for everyone’s benefit. It argues that, by developing skills, citizens can significantly contribute to altering the course of history in our global economy, especially in Latin America and Venezuela. It introduces and familiarizes citizens with the knowledge developed in the dispute resolution field for the past fifty years. As a new field, dispute resolution is rapidly growing and evolving. Even though the knowledge produced is vital to help us interact more effectively, the materials are complex, dispersed, and, in some …

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Measuring “Access To Justice” In The Rush To Digitize, Amy J. Schmitz

Fordham Law Review

Access to Justice (A2J) is the hot topic of the day, energizing Twitter and judges alike. Meanwhile, professors and policymakers join in song, singing the praises of online dispute resolution (ODR) as means for expanding A2J. This is because ODR uses technology to allow for online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, condominium, landlord/tenant, personal injury, debt collection, and even divorce claims online. The hope is that online triage and dispute resolution systems will provide means for obtaining remedies for self-represented litigants (SRLs) and …

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Access To Justice And Dispute Resolution Across Cultures, Sukhsimranjit Singh

Fordham Law Review

There is a saying in the United States: the justice one receives is the justice one can afford. All too often, this saying proves true for both lower- and middle-class individuals. For the greatly impoverished, the access to justice crisis is twofold: part of the problem is knowing when to seek legal help and another is ensuring adequate delivery of legal assistance on request. Middle- class individuals face a different challenge, as they surpass the income threshold for free civil public legal aid but cannot afford the rising costs of conventional litigation. The problem persists across different cultures. This Article …

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Bringing Transparency And Accountability (With A Dash Of Competition) To Court-Connected Dispute Resolution, Nancy A. Welsh

Fordham Law Review

Among the various dispute resolution processes, mediation is the most widely institutionalized in American courts. As a result, this Article focuses primarily, although not exclusively, on the data collected and disseminated regarding court-connected mediation. The Article begins with a brief description of the institutionalization of mediation and other dispute resolution processes in the federal judicial system and in select U.S. state court systems. This narrative reveals substantial reference to the availability of mediation but a dizzying patchwork in terms of institutionalization and a significant lack of system-wide information in some states. The Article then focuses on the data that these …

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Roger That: Calling An Audible On The Nfl Commissioner’S Final Authority Over Player Disciplinary Matters As The 2020 Cba Re-Negotiation Looms, Kyle Yager

Arbitration Law Review (2009 - Present)

No abstract provided.

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The Courts, Not The Arbitrator, Must Decide Class Arbitrability Unless Clearly And Unmistakably Granted In The Arbitration Agreement: A Comment On 20/20 Communs., Inc. V. Crawford, Andrew Peretin

Arbitration Law Review (2009 - Present)

No abstract provided.

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The Final Frontier: Are Class Action Waivers In Broker-Dealer Employment Agreements Enforceable?, Jill I. Gross

Arbitration Law Review (2009 - Present)

No abstract provided.

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The Role Of Arbitration In Securing An Israeli-Egyptian Energy Hub, Hannah D. Goodwin

Arbitration Law Review (2009 - Present)

No abstract provided.

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Full-Text Articles in Dispute Resolution and Arbitration

What Users Say About International Mediators And Mediation Institutions: Part 2, Nadja Alexander, Allison Goh

Research Collection Yong Pung How School Of Law

Why And How Users Make Choices In International Dispute Resolution: 2020 Sidra Survey, Nadja Alexander, Allison Goh

Research Collection Yong Pung How School Of Law

Batna’S Got To Go — And Here’S A Better Idea, John M. Lande

Faculty Blogs

Hearing On The Foreign Sovereign Immunities Act, Coronavirus, And Addressing China’S Culpability Before The Senate Committee On The Judiciary, Russell A. Miller

Scholarly Articles

Interpretation Of Article V Of The New York Convention In The Eleventh Circuit: Industrial Risk Insurers, Juan C. Garcia, Ivan Bracho Gonzalez

University of Miami Law Review

A Cure For Every Ill? Remedies For “Pathological” Arbitration Clauses, Harout J. Samra, Ramya Ramachanderan

University of Miami Law Review

Mediate.Com Publishes “Seven Keys To Unlock Mediation’S Golden Age”, John Lande

Faculty Blogs

Resources For Teaching About Batna, Bottom Lines, And Lira, John Lande

Faculty Blogs

Decision-Making As An Essential Element Of Our Field, John M. Lande

Faculty Blogs

The Prodigal Son Comes Home: Ecuador Returns To Investment Arbitration, Gilberto Guerrero-Rocca

Faculty Publications

Mass Torts: Dispute Resolution In France And The United States--The Vioxx And Mediator Cases Compared, Fred Einbinder Mr.

Washington International Law Journal

Reflections: Weaving Threads To Strengthen The Fabric Of Our Communities, Sharon Press

DRI Press

An Inquiry Into The Scope Of Mfn Provisions In Bilateral Investment Treaties, Amit Kumar Sinha

Brooklyn Journal of International Law

Kosovo's Controversial 100 Percent Tariff: An Analysis Of Its Imposition And The Issues Bleeding Into The Conflict Between Kosovo And Serbia, Ernira Mehmetaj

Brooklyn Journal of International Law

The Evolving Concept Of Access To Justice In Singapore’S Mediation Movement, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

How To Play “Friendly Hardball” In A Negotiation, Michael Schaerer, Martin Schweinsberg, Roderick I. Swaab

Research Collection Lee Kong Chian School Of Business

The International Claims Trade, Kathleen Claussen

Cardozo Law Review

Tax And Arbitration, William W. Park

Faculty Scholarship

In Conspicuous Terms-- Arbitration Agreements For The Modern Reasonable App User, Michelle Dunbar

William & Mary Business Law Review

Measuring "Access To Justice" In The Rush To Digitize, Amy J. Schmitz

Faculty Publications

Arbitration Archetypes For Enhancing Access To Justice, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Arbitrarily Selecting Black Arbitrators, Michael Z. Green

Fordham Law Review

Remedy Without Diagnosis: How To Optimize Results By Leveraging The Appropriate Dispute Resolution And Shared Decision-Making Process, Mariana Hernandez-Crespo Gonstead

Fordham Law Review

Measuring “Access To Justice” In The Rush To Digitize, Amy J. Schmitz

Fordham Law Review

Access To Justice And Dispute Resolution Across Cultures, Sukhsimranjit Singh

Fordham Law Review

Bringing Transparency And Accountability (With A Dash Of Competition) To Court-Connected Dispute Resolution, Nancy A. Welsh

Fordham Law Review

Roger That: Calling An Audible On The Nfl Commissioner’S Final Authority Over Player Disciplinary Matters As The 2020 Cba Re-Negotiation Looms, Kyle Yager

Arbitration Law Review (2009 - Present)

The Courts, Not The Arbitrator, Must Decide Class Arbitrability Unless Clearly And Unmistakably Granted In The Arbitration Agreement: A Comment On 20/20 Communs., Inc. V. Crawford, Andrew Peretin

Arbitration Law Review (2009 - Present)

The Final Frontier: Are Class Action Waivers In Broker-Dealer Employment Agreements Enforceable?, Jill I. Gross

Arbitration Law Review (2009 - Present)

The Role Of Arbitration In Securing An Israeli-Egyptian Energy Hub, Hannah D. Goodwin

Arbitration Law Review (2009 - Present)