Dispute Resolution and Arbitration Commons^™

The Interaction Between Foreign And Domestic Doctrines Of Illegality: Ang Jian Sheng Jonathan V Lyu Yan [2021] 1 Slr 1091, Wen Yee Chang

Singapore Law Journal (Lexicon)

Moves to promote Singapore as an international dispute resolution hub in recent years1 have seen an increase in the number of international disputes being heard in Singapore.2 In 2021, Singapore was recognised as the top seat of arbitration globally, with the Singapore International Arbitration Centre chosen as the most preferred arbitral institution in the Asia-Pacific.3 On the litigation front, the Singapore International Commercial Court (“SICC”) is also well-positioned to deal with an expected 26 percent surge in cross-border insolvency disputes arising due to the current pandemic.4 Against this backdrop, cross-border issues will be more frequently dealt with before Singapore courts. …

Reforming Singapore’S Law On Division Of Matrimonial Assets, Jia En Teo

Singapore Law Journal (Lexicon)

Section 46(1) of the Women’s Charter undergirds the sacrosanct institution that is marriage – it lays out its moral basis and expresses society’s hopes and expectations of the ideal marital relationship: marriage is an equal cooperative partnership of different efforts for mutual benefit. It is thus no surprise that even when a marriage is terminated, the division of matrimonial assets is also founded upon this prevailing ideology. However, as opposed to equal division, Singapore law dictates a “just and equitable” division of matrimonial assets, where wide discretion and power is vested in the judiciary. This legal rule has been criticised …

Giants Of Contract Law – Some Personal Reflections, Hon. Andrew Phang

Singapore Law Journal (Lexicon)

The law of contract may seem mostly technical and, on occasion, even overly theoretical. However, if one looks more closely at its foundations as well as scholarship, it is clear that contract law has much greater value to offer us. In that regard, the present essay has two main aims. The first is the give a brief account of the lives as well as scholarship of four giants of contract law whom we have lost in the past few years. Indeed, it may be said that their scholarship has contributed to the foundational bedrock of the law of contract as …

Police Accountability: How Narrowing The Scope Of Arbitration And Limiting Procedural Protections Can Promote Social Trust And Justice, Adrienne Baker

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Appointing Arbitrators: Tenure, Public Confidence, And A Middle Road For Isds Reform, Thomas D. Grant, F. Scott Kieff

Michigan Journal of International Law

Many governments now join academics and activists in questioning whether ad hoc tribunals, which comprise private individuals holding no tenured role on a court, ought to be entrusted with deciding cases, where the resultant awards sometimes impose significant financial burdens on the respondent State, constrain the State’s regulatory choices, and affect the interests of third parties. Investor-State dispute settlement (ISDS), during the great expansion of its practice over the past quarter century, has relied on party-appointed arbitrators to constitute the ad hoc tribunals that hear and decide cases that investors bring. Moved by a turn of public sentiment in recent …

Systemic Risk Of Contract, Tal Kastner

Scholarly Works

Complexity and uncertainty define our world, now more than ever. Scholars and practitioners have celebrated modular contract design as an especially effective tool to manage these challenges. Modularity divides complex structures into relatively discrete, independent components with simple connections. The benefits of this fundamental drafting approach are intuitive. Lawyers divide contracts into sections and provisions to make them easier to understand and reduce uncertainty. Dealmakers constructing complex transactions use portable agreements as building blocks to reduce drafting costs and enable innovation. Little attention, however, has been paid to the risks introduced by modularity in contracts. This Article demonstrates how this …

Trade's Mini-Deals, Kathleen Claussen

Articles

The modern consensus is that U.S. trade law is made through statute and through large congressional-executive agreements, both of which maintain Congress' constitutional primacy over the regulation of foreign commerce. Contrary to this understanding, however, short, targeted agreements negotiated by the U.S. executive with foreign trading partners - recently referred to as "mini-deals" - have become a fixture of the trade law landscape over the last three decades in staggering number. More than 1,200 such agreements govern the movement of goods and services in and out of the United States from and to 130 countries. Such deals are not only …

Abuse Just Out Of Frame: The Impact Of Online Dispute Resolution On Domestic Violence, Haley Benson

Journal of Dispute Resolution

“This is a[n] issue we didn’t have when we had live court.” It was a chilling day for prosecutor Deborah Davis when she discovered a victim of domestic violence was in the same apartment as her abuser during a session of Zoom court. In this case, the survivor had done the hardest part; she had made the decision to prosecute her abuser. As court began, Davis saw that her client had a similar virtual background to the alleged abuser and noticed that her client was looking away from the camera while answering questions. This prompted Davis to request that police …

The Lost Cause Of Free Speech, Mary Anne Franks

Articles

No abstract provided.

Playing The Game Of International Law, Uri Weiss, Joseph Agassi

Touro Law Review

In the realist game of international negotiations, each state attempts to promote their interest regardless of international law. Thus, it is negotiations in the shadow of the sword, i.e., a negotiation in which each side knows that if the parties will not achieve an agreement, the alternative may be a war, and thus the bargaining position of each party is a function of their capacities in a case of war. Negotiation in the shadow of international law is an alternative to it: in this alternative the parties negotiate according to their international legal rights. It reduces injustice and incentive to …

The Future Of Online Dispute Resolution (Odr): Definitions, Standards, Disability Accessibility, And Legislation, David Allen Larson

Faculty Scholarship

Jurisdictions around the world are increasingly turning to Online Dispute Resolution (‘ODR’) to resolve a variety of disputes. ODR adoption has accelerated primarily because of two reasons. First, the COVID-19 pandemic has forced judicial systems to suspend or severely limit inperson proceedings to control infection rates. Private mediators and arbitrators, likewise, have eliminated or dramatically reduced in-person sessions. Second, judicial systems do not have unlimited !nancial resources. They must always consider ways to provide access to justice as ef!ciently and effectively as possible. ODR may be able to provide signi!cant cost savings. But ODR processes are still new and evolving …

Rational Actors, Class Action Waivers, And The Emergence Of Mass Individual Arbitration Demands, Richard D. Freer

Faculty Articles

Part I of this Article gives a brief overview of the FAA, including the four understandings that underlay the Court’s jurisprudence for six decades, and the radical transformation wrought by the Court’s rejection of those understandings in the past four decades. Part II discusses how the transformation of the FAA led plaintiff and defense counsel, as rational actors, to adopt positions that ultimately led to the focus on class action waivers. Part III analyzes the Court’s decisions from 2013 to the present and draws at least some tentative conclusions about where things stand a decade after Professor Wasserman raised these …

Litigation About Mediation: A Case Study In Institutionalization, James Coben

Faculty Scholarship

No abstract provided.

The Illusion Of The Public Policy Exception: Arbitration, Law Enforcement Discipline, And The Need To Reform Minnesota's Approach To The Public Policy Exception, Ben Larson

Mitchell Hamline Law Review

No abstract provided.

Should The Call For Systemic Change Start With Police Grievance Arbitration?, Kate Fredrickson

Mitchell Hamline Law Review

No abstract provided.

In-Person Or Via Technology?: Drawing On Psychology To Choose And Design Dispute Resolution Processes, Jean R. Sternlight, Jennifer K. Robbennolt

Scholarly Works

Covid-19 fostered a remote technology boom in the world of dispute resolution. Pre-pandemic, adoption of technical innovation in dispute resolution was slow moving. Some attorneys, courts, arbitrators, mediators and others did use technology, including telephone, e-mail, text, or videoconferences, or more ambitious online dispute resolution (ODR). But, to the chagrin of technology advocates, many conducted most dispute resolution largely in-person. The pandemic effectively put the emerging technological efforts on steroids. Even the most technologically challenged quickly began to replace in-person dispute resolution with videoconferencing, texting, and other technology. Courts throughout the world canceled all or most in-person trials, hearings, conferences, …

Carrie Menkel-Meadow: Leading Us Toward Justice And Peace, Jean R. Sternlight

Scholarly Works

This Essay explores how Carrie Menkel-Meadow's life and work have both highlighted the path of "And"-showing and explaining that it is not only possible but also desirable to seek justice as well as peace, to be both activist and neutral. Of course, tensions will remain. Regarding particular issues in specific moments we all must decide which path we can and should take. Which activism is best, and which goes too far? With whom can we or should we negotiate, and when should we instead say, "I can't negotiate with this person or group"? When should we talk and listen, and …

The Litigation Landscape Of Fraternity And Sorority Hazing: Defenses, Evidence, And Damages, Gregory S. Parks, Elizabeth Grindell

Washington and Lee Law Review

In recent years, increasing public and media attention has focused on hazing, especially in collegiate fraternities and sororities. Whether it is because of the deaths, major injuries, or litigation, both criminal and civil, collegiate fraternities and sororities have received increased scrutiny. In this Article, we explore a range of tactical considerations that lawyers must consider—from defenses to evidentiary concerns. We also explore how damages are contemplated in the context of hazing litigation.

Mass Arbitration, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

For decades, the class action has been in the crosshairs of defense-side procedural warfare. Repeated attacks on the class action by the defense bar, the U.S. Chamber of Commerce, and other defense-side interest groups have been overwhelmingly successful. None proved more successful than the “arbitration revolution”—a forty- year campaign to eliminate class actions through forced arbitration provisions in private contracts. The effects for civil justice have been profound. Scores of claims vanished from the civil justice landscape—claims concerning civil rights, wage theft, sexual harassment, and consumer fraud. The effects for social justice, racial justice, gender justice, and economic justice were …

How Can Federal Actors Compete On Noncompetes? Examining The Need For And Possibility Of Federal Action On Noncompetition Agreements, Robert Mcavoy

Dickinson Law Review (2017-Present)

Employees have been frustrated by the restrictiveness of noncompete agreements and confused about their enforceability for decades. The added complication of choice-of-law provisions in employment contracts with noncompetes creates a sea of unpredictability for both employees and employers.

Each state applies its own policy to noncompete agreements. While every state treats noncompetes differently than typical contract provisions, a broad spectrum exists between the states that are friendly and those that are hostile to the enforcement of noncompetes. Employees and employers often fail to understand whether their noncompete is enforceable under the jurisdiction chosen by the contract, and courts override choice-of-law …

Negotiating Social Change: Backstory Behind The Repeal Of Don’T Ask, Don’T Tell, Linell A. Letendre, Hal Abramson

Scholarly Works

This Article is about negotiating social change in the largest U.S.institution, the Military and its five Services. Inducing social change in any institution and society is notoriously difficult when change requires overcoming clashing personal values among stakeholders. And, in this negotiation over the repeal of Don’t Ask, Don’t Tell (DADT), clashing values over open service by gays and lesbians were central to the conflict.

In response to President Obama’s call to repeal DADT, the Secretary of Defense selected a Working Group to undertake studies, surveys and focus groups to inform the debate. During the nine-month process of gathering a massive …

No Good Deed Goes Unpunished: Practical Solutions For Police Executives To Reduce The Likelihood Of Disciplinary Action Being Overturned Through Arbitration, Spring Sendele

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Zooming In On Neutrals’ Implicit ‘Isms, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Video conferencing, extolled for its economic and efficiency benefits, has now become an accepted option in the “new normal” of dispute resolution practice. Consequently, our professional discussions about video conferencing have advanced from sharing the mechanics of “how to” conduct an arbitration or mediation on Zoom to more nuanced explorations about the appropriate use of video conferencing. This column contributes to this exploration by questioning how dispute resolution processes conducted via video conferencing might trigger the implicit biases of arbitrators and mediators and compromise a neutral’s ethical obligation to be impartial. When a neutral conducts their dispute resolution processes …

Arbitration Case Law Updates 2021–2022 (June 2022), Sandra D. Grannum, Elissa Germaine

Faculty Publications

(Excerpt)

This article summarizes leading arbitration cases and related issues that are of particular relevance to the securities arbitration practitioner. There appears to be a move away from compelling arbitration and federal jurisdiction of motions to confirm or vacate. The courts have decided several cases specifically involving FINRA arbitrations, discussing who can bring them and what courts have jurisdiction over them.

In addition, the Federal Arbitration Act was amended by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, the title of which speaks for itself.

Blinding Justice And Video Conferencing?, Elayne E. Greenberg

Faculty Publications

(Excerpt)

How might dispute resolution processes for civil matters conducted on video conferencing be designed to reduce racial justice inequities and increase Black participants’ sense of procedural justice? In March 2020, responding to Covid-19 pandemic health concerns, all in-person, court-connected, and private dispute resolution processes shifted to video conferencing. Proponents of video conferencing have long touted how video conferencing would increase access to justice by providing an efficient, cost-effective, and time-saving alternative to in-person appearances. An unexplored question in March 2020 was how video conferencing would affect racial justice inequities. Black individuals and other marginalized groups were already disproportionately suffering …

The Unintended Consequence Of Settlement Fever And The Rule Of Law, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Welcome to the final column of a three-part series about how settlement fever has influenced our justice system as it evolves into settlement-centric culture. This column will focus on how the rule of law, once touted as the primary benchmark of justice, has now taken a secondary role to private ordering when shaping some negotiated and mediated settlements.

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 23 (2022)

Cardozo Journal of Conflict Resolution

No abstract provided.

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 23, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

The Impending Battle For The Soul Of Odr: Evolving Technologies And Ethical Factors Influencing The Field, Oladeji M. Tiamiyu

Cardozo Journal of Conflict Resolution

Legal professionals and disputants are increasingly recognizing the value of online dispute resolution ("ODR"). While the coronavirus pandemic forced many to resolve disputes exclusively online, potentially resulting in long-term changed preferences for different stakeholders, the pre-pandemic trend has involved a dramatic increase in technological tools that can be used for resolving disputes, particularly with facilitative technologies, artificial intelligence, and blockchains. Though this has the added benefit of increasing optionality in the dispute resolution process, these novel technologies come with their own limitations and also raise challenging ethical considerations for how ODR should be designed and implemented. In considering whether the …

What Happens Before The First Mediation Session? An Empirical Study Of Pre-Session Communications, Roselle L. Wissler, Art Hinshaw

Cardozo Journal of Conflict Resolution

Mediator, lawyer, and party preparation in advance of the first formal mediation session is widely seen as important for the effectiveness of the mediation. Communications between the mediator and the mediation participants before the first mediation session, along with the submission of case information and documents to the mediator, are two primary means of information exchange to aid preparation. Few studies have looked at what occurs during these early stages, despite their centrality to mediation. The present Article reports the findings of a study of more than 1,000 mediators in different mediation settings and dispute types across eight states that …