Dispute Resolution and Arbitration Commons^™

What’S The Best Way To Give Ground In A Negotiation?, Kian Siong Tey, Michael Schaerer, Nikhil Madan, Roderick Swaab

Research Collection Lee Kong Chian School Of Business

How much should you change your offer at each round of a negotiation? The stakes can be high: Give away too much and you devalue your offer; give away too little and you risk getting stuck in an impasse. The authors’ recent research shows that a rare approach to concessions — reducing the amount by which you reduce your offer each round — can yield the most value because it sends a clear signal about your final offer.

Investor-State Mediation And The Belt And Road Initiative: Examining The Conditions For Settlement, Mark Mclaughlin

Research Collection Yong Pung How School Of Law

Despite the dominance of arbitration in the realm of investor-state disputes, the variety of proposals for reform suggest considerable stakeholder discontent with the current framework. One suggested reform is the introduction of investor–state mediation, which has been supported by the conclusion of the Singapore Convention on Mediation and the proposal by the International Centre for Settlement of Investment Disputes (ICSID) of a set of mediation rules. This article examines the respective merits of arbitration and mediation to settle investment disputes related to the Belt and Road Initiative. Many of the principles underpinning the implementation of the Belt and Road Initiative …

Arbitration At The Supreme Court: The Faa From Rbg To Acb, Brian Farkas

Cardozo Law Review

Justice Ruth Bader Ginsburg left a profound mark on countless areas of law: gender equality, discrimination law, and voting rights, to name just a few. These weighty subjects have rightfully occupied the many scholars and journalists who have analyzed her legacy. These same subjects have animated vigorous conversations around former President Donald Trump’s selection of Justice Amy Coney Barrett—previously of the U.S. Court of Appeals for the Seventh Circuit—to replace her.

The Prague Rules: Fresh Prospects For Designing A Bespoke Process, Janet Walker

Articles & Book Chapters

No abstract provided.

Investor-State Dispute Prevention: A Critical Reflection, Lise Johnson, Lisa E. Sachs, Ella Merrill

Columbia Center on Sustainable Investment Staff Publications

With the rise of treaty-based investor-state dispute settlement (“ISDS”) which has taken place over the last two decades, a number of governments have adopted varying approaches to avoid those arbitration cases. Countries including Bosnia and Herzegovina, Colombia, Mexico, Mongolia, and Peru have pursued such initiatives, often with the support of intergovernmental organizations such as the United Nations Convention on Trade and Development (“UNCTAD”) and the World Bank.

In the context of discussions on ISDS reform taking place at the United Nations Commission on International Trade Law (“UNCITRAL”), some states have identified development and implementation of such ISDS-avoidance strategies and tools …

How To Be A Better Plea Bargainer, Cynthia Alkon, Andrea Kupfer Schneider

Faculty Scholarship

Preparation matters in negotiation. While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs. A systemic model can be used to improve plea bargaining skills. This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context. The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own. The sheet highlights important considerations such as understanding the interests and goals of …

Proper Characterisation Of The Parol Evidence Rule And Its Applicability In International Arbitration, Darius Chan, Yi Hang Louis Lau

Research Collection Yong Pung How School Of Law

Most arbitral statutes and institutional rules give great latitude to tribunals on the admissibility of evidence, and do not mandate application of domestic rules of evidence. In common law jurisdictions where the parol evidence rule applies, the issue that arises is whether the parol evidence rule is necessarily a procedural rule of evidence which tribunals are not bound to apply, especially in jurisdictions which have codified the rule under domestic evidence legislation. Notwithstanding any codification, this article argues that the parol evidence rule at common law is a substantive rule of contractual interpretation that should be applied as part of …

Opt-In Arbitration: A Functional Alternative To The Fair Act, Garrett Meisman

BYU Law Review

No abstract provided.

Teaching Students To Think Like Practitioners, John Lande

Faculty Blogs

This post summarizes ideas from a presentation focused on how to teach students to think like a mediator. This post applies the same logic to thinking like an advocate in mediation or a negotiator. The techniques can be applied in courses teaching practice skills through simulations, externships, and clinical experiences. The post includes possible teaching assignments.

Swords Into Plowshares: A Pilgrimage For The Css Alabama, William W. Park

Faculty Scholarship

During the American Civil War, Britain sold ships to the Southern Confederacy in breach of neutrality obligations, triggering a dispute with the United States carrying threats of armed conflict. Some American politicians saw the dispute as an opportunity to annex Canada, then a weak assemblage of British colonies. Ultimately, arbitration in Geneva averted war, opening an era of long Anglo-American cooperation. The historical consequence of this landmark 1872 arbitration remains difficult to overstate. In addition to its diplomatic importance, the case introduced significant procedural precedents for international arbitration, including dissenting options, reasoned awards, party-appointed arbitrators, collegial deliberations, and arbitrators’ declarations …

To Stay Or Not To Stay? A Clash Of Arbitration And Insolvency Regimes, Darius Chan, Sidharrth B Rajagopal

Research Collection Yong Pung How School Of Law

In the wake of the global Coronavirus disease 2019 (COVID-19) pandemic, a rise in creditorinitiated winding-up proceedings is likely to be impending in coming years (See e.g., RCMA Asia Pte. Ltd. v. Sun Electric Power Pte. Ltd. [2020] SGHC 205). At the same time, geopolitical developments, such as the scale and ambition of Belt & Road Initiative projects, have raised questions over the issue of debt sustainability. Given the prevalence of arbitration clauses in modern international commercial and project agreements, the interplay and relationship between insolvency and dispute resolution, and especially arbitration, requires careful attention. While the intersections between the …

Settlement Of Disputes Arising From Documentary Credit Under National And International Regulations, Dr. Hoda Magdy Nour

UAEU Law Journal

The need Settlement of disputes arising from bank credit between national and international rules, protecting the interests of the bank and ensuring its financial rights before the debtor.

As the Bank faces different technical and legal difficulties, as well as the multiplicity of legal adaptation, we deal with the rules governing banking accreditation from the point of pleadings law, and the methods of amicable settlement of these disputes and following, and compulsory execution.

International efforts are taking the lead in establishing the technical regulation of bank accreditation and setting rules "DOCDEX" in 1997, and the 2015 amendments, which still need …

Exhaustion Requirements And Dispute Resolution Reform In Bilateral Investment Treaties, William Crowder Gaskins Jr.

Georgia Journal of International & Comparative Law

No abstract provided.

Capitalization Of The Global Green Economy: An Analysis Of South Carolina's Current Foreign Direct Investment Efforts And Suggestions For Continued Sustainability, William E. Hilger

South Carolina Law Review

No abstract provided.

Post-Grillo: New Family Mediation Protections And Revised Dangers, Kelly Browe Olson

Law Faculty Scholarship

Until Professor Trina Grillo’s article warned readers of its process dangers, the family mediation process was viewed as a positive antidote to extensive and costly litigation and as a valuable opportunity for families to work together informally to resolve their custody, support, and property issues. Grillo, an academic and a practicing mediator, asserted that family mediation was not living up to its potential, that mediators hurt women and minorities by mandating participation without lawyers, and that its use created a false sense of empowerment. She was concerned that some mediators were not neutral, failed to focus on clients’ individual needs, …

Digital Assets & License Protections In An Age That Denies Class Actions And Mandates Arbitration, Kevin Carr

Journal of Dispute Resolution

The battle of star system B-R5RB is probably a conflict and place that you have never heard of, even though an estimated £300,000 worth of property damage and loss occurred due to an interstellar battle on July 27, 2014. Hundreds of competing rival ships were destroyed, with over 7,600 individuals taking part in one of the single largest property disputes of the 21st century. The conflict lasted approximately 21 hours and had ripple effects across an entire galaxy. If this sounds like fiction, I assure you, it is not. You have likely never heard of star system B-R5RB or the …

Description

Journal of Dispute Resolution

No abstract provided.

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Clandestine Awards, Information Asymmetries, And Equality Of Arms In Investment Arbitration, Fernando Dias Simões

Journal of Dispute Resolution

Among the numerous criticisms leveled at investor-state arbitration over the years, it has almost become de rigueur to point out a lack of transparency. In this arena “transparency” refers to the extent to which the public may be aware of the existence of a dispute, have access to key arbitral documents, or attend oral hearings.

Disentangling Conflicts Of Laws In Eu And Member States’ Investment Agreements, Ottavio Quirico

Journal of Dispute Resolution

The European Union (“EU”) is integrated into global markets via an open investment regime, which has fostered the development of wide economic relations. In 2019, the net investment outflow from EU Member States toward third countries totaled $42,6761 million, while inflow totaled $47,3196 million. To regulate investment disparities since the establishment of the common market in the 1950s, EU Member States have concluded about 1400 multilateral investment treaties (“MITs”) and bilateral investment treaties (“BITs”) with third countries. EU Member States have also negotiated around 190 MITs and BITs inter se, or intra-EU investment agreements. Since the adoption of the Lisbon …

Faculty List

Journal of Dispute Resolution

No abstract provided.

Can Artificial Intelligence (“Ai”) Replace Human Arbitrators? Technological Concerns And Legal Implications, Gizem Halis Kasap

Journal of Dispute Resolution

Artificial intelligence (“AI”) is no longer a precursor to the future—it is already here in the mainstream. Some countries, for example, have started to implement AI-based technologies into their adjudication processes. It has been reported that Estonia is currently developing an AI judge that can adjudicate small claims disputes of less than º7,000 and that China already has digital courts presided over by an AI judge. Together with the triggering effect of such futuristic news, AI studies that predict the outcome of litigation have stirred heated debate about the possible arrival of AI judges.

Acceptable Lies In Contract Negotiations, Stefanie Jung

Journal of Dispute Resolution

It is well established that lying is a widespread phenomenon in business-to-business (“B2B”) contract negotiations. Some of the most prominent lies may be those about the subject matter of the contract. However, negotiators also frequently lie about other aspects like offers from other potential buyers or sellers, the availability of their product, the legal situation regarding contractual aspects, as well as their emotions and preferences.

Masthead

Journal of Dispute Resolution

No abstract provided.

Keeping The Elderly Quiet: The Trump Administration And The Reincarnation Of Mandatory Arbitration In Nursing Home Contracts, Katey Peters

Journal of Dispute Resolution

Mandatory arbitration provisions are the current standard in nursing home admission contracts, but the legal arguments surrounding their enforcement raise questions concerning the validity of these standard provisions. Arbitration provisions allow nursing homes to limit the transparency into their operations and keep victims, and their families, quiet and out of the public eye. This, in turn, limits the understanding of the shortcoming of current regulations and where new regulations may help. The current Coronavirus Disease 2019 (“COVID-19”) pandemic has brought to light some of these otherwise hidden regulatory issues surrounding nursing homes. As a result, several states have tried to …

Supplemental Environmental Projects’ Wild Ride Is A Call For Legislative Action To Protect A Valuable Negotiation Tool, Joel Smith

Journal of Dispute Resolution

In March 2020, the head of the Department of Justice’s Environmental Natural Resources Division (“DOJ ENRD”) issued a decision that fundamentally altered the federal government’s ability to address environmental harm. The decision removed a valuable tool from the negotiation toolbox that Department of Justice (“DOJ”) attorneys used for decades when negotiating settlements in civil enforcement of federal environmental protection laws. This policy change had the potential to significantly impact resolution of complex environmental disputes. In February 2021, the new Chief of the DOJ ENRD rescinded the 2020 memo in response to an executive order from newly elected President Joe Biden. …

Mediation Ethics: From Theory To Practice, Field, Rachael And Crowe, Jonathan. Edward Elgar Publishing, 2020, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

For too long within the mediation field, there has been confusion on how the foundational principles of mediator neutrality, impartiality, and self-determination work together to bring about a fair outcome. There has been a corresponding lack of clarity on what the mediator does to ensure that these principles are collectively fulfilled through a consensual settlement. Astor (2007), who has written extensively on mediator neutrality, has described the mediator's role as maximizing party control. However, Astor also comments that making decisions aimed at maximizing party control is not simple and highly dependent on the context. The mediator has to intervene in …

‘Security For Costs’ Under The Icsid Regime: Does It Prevent ‘Arbitral Hit-And-Runs’ Or Does It Unduly Stifle Third-Party Funded Investors’ Due Process Rights?, Young Hye (Martina) Chun

Pepperdine Dispute Resolution Law Journal

This Article considers security for costs under the ICSID regime. Given that all security for costs have been ordered against third-party funded investors—with the latest decision, Unionmatex, in January 2020, this Article examines prior ICSID decisions to determine whether third-party funded investors are prejudiced when it comes to security for costs. It further addresses whether an applicant’s right to a costs award is a “protectable right” under Article 47 and concludes that it is not. Finding that “arbitral hit-and-run” is a hypothetical concern not based on empirical evidence and providing that ICSID’s new proposed rules to its Arbitration Rules will …

Contents And Masthead, Amy Jicha

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Private Juries Within The Arbitration Framework: A Third Path In Dispute Resolution, Lionel M. Schooler, Luke Gilman

Pepperdine Dispute Resolution Law Journal

In the context of a global pandemic and a resulting backlog of jury trials in the United States court system, this article explores the potential for employing a private jury system within existing arbitration law to provide a third path for parties seeking an expedient resolution of disputes by juries when impediments exist to jury trial in court. After an introduction and background on the current state of the global SARS-CoV-2 pandemic and its effect on court backlogs, we outline the law applicable to private jury proceedings, including (a) whether an arbitral award predicated on a private jury determination is …