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Dispute Resolution and Arbitration Commons™

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2022

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Articles 61 - 90 of 202

Full-Text Articles in Dispute Resolution and Arbitration

Artificial Bias: The Ethical Concerns Of Ai-Driven Dispute Resolution In Family Matters, Wensdai Brooks Jul 2022

Artificial Bias: The Ethical Concerns Of Ai-Driven Dispute Resolution In Family Matters, Wensdai Brooks

Journal of Dispute Resolution

From the global positioning systems (GPS) that guide our morning commute to the more complex machine learning systems used to build Spotify’s curation algorithms, artificial intelligence (AI) has become a central part of the way that society functions efficiently. AI has become increasingly integrated into our daily lives, permeating consumer and corporate worlds alike. Despite a reputation for being slow to adopt new technology, the legal field has been particularly forward in embracing the use of AI to increase docket speeds, optimize case management, and fill gaps in access to justice. An impressive array of programs now exists, creating a …

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Appraisal Of The Success Of The Instruments Of International Commercial Arbitration Vis-À-Vis International Commercial Litigations And Mediation In The Harmonization Of The Rules Of Transnational Commercial Dispute Resolution, Samuel Maireg Biresaw Jul 2022

Appraisal Of The Success Of The Instruments Of International Commercial Arbitration Vis-À-Vis International Commercial Litigations And Mediation In The Harmonization Of The Rules Of Transnational Commercial Dispute Resolution, Samuel Maireg Biresaw

Journal of Dispute Resolution

This article compares the major instruments of International Commercial Arbitration (hereinafter ‘ICA’) with the instruments of International Commercial Litigation and Mediation. By so doing, the article comparatively assesses the success of ICA, litigation, and mediation as alternative mechanisms of transnational commercial dispute resolution. Accordingly, the article argues that, while the ICA is not the only means of transnational commercial dispute resolution, it will continue to be the most successful means of dispute resolution, playing the dominant role in harmonizing the rules of transnational commercial dispute resolution. However, the article also argues that, over time, transnational commercial litigation and mediation are …

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Adr Provisions To Inoculate The Vaccine Industry From Governmental Ip Takings, Mark Buck Jul 2022

Adr Provisions To Inoculate The Vaccine Industry From Governmental Ip Takings, Mark Buck

Journal of Dispute Resolution

It started with a cough. It continued with a fever. After several days of treatment with over-the-counter medications without improvement, it became clear that Victor Villarroel Saavedra, an unvaccinated but otherwise in good health Bolivian physician, had contracted COVID-19 in the summer of 2020. By this point, Victor’s options were limited: seek at-home care or go to the hospital. After a few days of in-home care with nasal canal oxygen and nursing/physician oversight, he was eventually transferred to a hospital where he passed within the week. This all could have been avoided with a simple jab in the otherwise healthy …

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Not Quite “Justice For All”: How Provisions Of Victims’ Rights Legislation Can Harm Plea Negotiations, Hannah Williams Jul 2022

Not Quite “Justice For All”: How Provisions Of Victims’ Rights Legislation Can Harm Plea Negotiations, Hannah Williams

Journal of Dispute Resolution

Undoubtedly, the history of our criminal justice system has been unkind to victims of crime. This demographic, if acknowledged at all, would historically sit in our nation’s courtrooms and watch as the criminal justice system happened to them. Congress fundamentally altered the role of victims in 2015 when it enacted a statute granting victims a plethora of new rights. Victims suddenly could confer with the state’s attorney and rely on protections from the government against the accused. Interspersed within victims’ newfound rights is the right to be reasonably heard at any plea proceeding and the ability to reopen a plea …

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The Influence Of Foreign Jurisprudence About International Commercial Arbitration In Latin American State Courts, Björn Arp Jul 2022

The Influence Of Foreign Jurisprudence About International Commercial Arbitration In Latin American State Courts, Björn Arp

Journal of Dispute Resolution

International commercial arbitration has become regulated in an increasingly uniform manner through texts such as the UNCITRAL Model Law and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Despite the apparent uniformity, state courts still encounter instances of unclear and incomplete regulations of arbitration-related matters. This article focuses on the practice of courts in Latin America that interpret arbitration-related regulations and fill gaps with the help of a comparative jurisprudential analysis. The article reviews this jurisprudence to determine what impact, if any, landmark cases from France, Switzerland, the United Kingdom, the United States, and other …

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Counting The Cost Of Enlarging The Role Of Adr In Civil Justice, Dorcas Quek Anderson Jul 2022

Counting The Cost Of Enlarging The Role Of Adr In Civil Justice, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

Access to civil justice in many countries has been plagued by the common challenges of the high cost of litigation, inequality in parties’ financial resources, differing risk appetites and limited judicial resources. Singapore, a common law jurisdiction, recently implemented radical changes to its civil justice regime with effect from 1 April 2022 in order to ensure affordability and timeliness of the civil justice process. As in the United Kingdom, these civil justice reforms are premised on the proportionality principle: they seek to achieve procedure that is proportionate to the claim value and the means of the parties, without unduly compromising …

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To Negotiate, Mediate Or Litigate? Examining The Durability Of Divorce Outcomes In The Singapore Family Courts, Dorcas Quek Anderson, Eunice Chua, Yilin Ning Jul 2022

To Negotiate, Mediate Or Litigate? Examining The Durability Of Divorce Outcomes In The Singapore Family Courts, Dorcas Quek Anderson, Eunice Chua, Yilin Ning

Research Collection Yong Pung How School Of Law

For many years, the courts have been grappling with the paradox of marriages—the most intimate of relationships—being dissolved in the courts that represent a public and adversarial setting. Despite the growth of divorce interventions, the perennial struggle remains in many courts on how to reduce the intense acrimony of divorce litigation. The question remains on the scope of “mainstream” interventions to be offered by the courts to divorce litigants. The current study therefore explores the use of court-connected negotiation, mediation, and litigation in the Singapore Family Justice Courts. It uses a statistical method of survival analysis to produce insights on …

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Mandating Early Neutral Evaluations: Efficient Or Excessive?, William J. Baker Jun 2022

Mandating Early Neutral Evaluations: Efficient Or Excessive?, William J. Baker

Pepperdine Dispute Resolution Law Journal

This paper explores whether mandating alternative dispute resolution (ADR), specifically in the form of early neutral evaluations (ENEs), actually improves efficiency in federal courts. This paper attempts to challenge and test the presumption that ADR inherently promotes efficiency in all civil cases. Part I introduces the reader to ENEs, ADR, their presence in federal courts, and efficiency’s role within this framework. Part II challenges the notion that ADR and efficiency are inherently linked, and asks whether mandating ENEs can prove if this inherent efficiency exists. Part III presents the legal theory that addresses this question, tending to support the notion …

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Table Of Contents And Masthead, Katelyn Leeveriphan Jun 2022

Table Of Contents And Masthead, Katelyn Leeveriphan

Pepperdine Dispute Resolution Law Journal

No abstract provided.

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The Cjeu And The Introduction Of International Dispute Settlement Mechanisms Within The Eu: Is Alternative Dispute Resolution In The Eu In Safe Hands?, Tasnim Ahmed Jun 2022

The Cjeu And The Introduction Of International Dispute Settlement Mechanisms Within The Eu: Is Alternative Dispute Resolution In The Eu In Safe Hands?, Tasnim Ahmed

Pepperdine Dispute Resolution Law Journal

This article draws upon the jurisprudence of the Court of Justice of the European Union (CJEU) concerning the role of the international dispute settlement mechanisms operating within the EU legal order. The Court has resisted the introduction of such dispute settlement mechanisms, referring to Articles 267 and 344 of the Treaty of the Functioning of the European Union (TFEU) as justifications for its ‘judicial monopoly’. The Achmea case in particular allows the Court to declare these dispute settlement mechanisms contrary to EU law. However, with the Comprehensive Economic Trade Agreement (CETA) Opinion, the Court itself has permitted the CETA Investment …

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Arbitration And The Right To Have Your Day In Court: Meeting Again At The Turning Of The Tide, Lucas Clover Alcolea Jun 2022

Arbitration And The Right To Have Your Day In Court: Meeting Again At The Turning Of The Tide, Lucas Clover Alcolea

Pepperdine Dispute Resolution Law Journal

This article aims to explore court decisions which have made arbitration less attractive to businesses—both those which have refused to enforce arbitration clauses and paradoxically and those which have enforced arbitration clauses—as well as to provide an overview of businesses' reactions to those decisions and make some predictions about the future direction of travel. To that end, this article will be divided into three main parts. The first will explore the decision of New Prime Inc. as well as the various federal appellate decisions that have applied it. The second will explore the challenges posed by mass arbitration, and the …

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Fixing The Dent: How Nfl Owners Closed The Door To Civil Common Law Liability, Zachary Okun Jun 2022

Fixing The Dent: How Nfl Owners Closed The Door To Civil Common Law Liability, Zachary Okun

Pepperdine Dispute Resolution Law Journal

With a new, eleven-year Collective Bargaining Agreement (CBA) upon us, this paper will discuss in Section II what a CBA is, the purpose CBAs serve, and the function and historical treatment of the NFL’s CBA by the courts. Section II will also explain the NFL arbitration process, the reason the NFL fights so hard to enforce arbitration, and why the players should have been more cognizant of the provisions within the CBA which act to insulate the NFL and its Clubs from common law tort liability. Section III will discuss the NFL’s historical reliance of the LMRA §301 preemption defense; …

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Standing At Crossroads: The Trajectory Of Iias And Isds And Their Projection In The Post-Pandemic Global Economy, Yasharth Misra Jun 2022

Standing At Crossroads: The Trajectory Of Iias And Isds And Their Projection In The Post-Pandemic Global Economy, Yasharth Misra

Pepperdine Dispute Resolution Law Journal

No abstract provided.

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Arbitral Analytics: How Moneyball Based Litigation/Judicial Analytics Can Be Used To Predict Arbitration Claims And Outcomes, Benjamin Davies Jun 2022

Arbitral Analytics: How Moneyball Based Litigation/Judicial Analytics Can Be Used To Predict Arbitration Claims And Outcomes, Benjamin Davies

Pepperdine Dispute Resolution Law Journal

This paper reviews, discusses, and advances the field of artificial intelligence in the field of litigation analytics and its application to arbitrations. To better explain the weight an attorney, judge, arbitrator, or the public should have towards artificial intelligence and its utilization in the legal field, this paper reviews current AI publications in the litigation analytics field, historical examples, ethical considerations for analytics, and issues surrounding the accumulation of litigation data. Thereafter, this combined knowledge and experience is applied to Federal Industry Regulatory Authority (FINRA) arbitration awards with a novel AI program designed to scrape, index, and analyze these awards …

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Designing Responsive Legal Systems: A Comparative Study, Nofit Amir, Michal Alberstein Jun 2022

Designing Responsive Legal Systems: A Comparative Study, Nofit Amir, Michal Alberstein

Pepperdine Dispute Resolution Law Journal

The drive for efficiency has caused many legal systems to redesign themselves, creating multiple paths for dispute resolution and incorporating settlement-promoting tools into the judicial role. However, as this study shows, legal systems have taken divergent approaches as they redesign themselves to accommodate settlement practices, leading to widely disparate results. This study probes the paths taken by three countries’ legal systems—England and Wales (common law), Israel (mixed), and Italy (continental law)—drawing on court docket analyses, courtroom observations, and interviews with judges in the three legal systems. It uncovers central points of divergence—emphasized stage of dispute resolution, separation vs. combination of …

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From Healthcare To Hiring: Impacts Of Social And Public Policy On Disabled Veterans In The United States, Benjamin Michael Stoflet Jun 2022

From Healthcare To Hiring: Impacts Of Social And Public Policy On Disabled Veterans In The United States, Benjamin Michael Stoflet

Student Scholarship

The United States Government is struggling to fulfill commitments it has made to service members suffering from disabilities incurred during honorable service to the country. The Department of Veterans Affairs (VA) disability compensation structure, job training programs, and methods of alternative dispute resolution is a patchwork resulting from decades of legislation creating a system where veterans often become locked in a complicated and often combative process to obtain benefits they have earned. Employers, advocacy groups, academics, and federal officials agree that there are systematic issues within the VA negatively impacting disabled veterans. These include a lack of patient-centered care, divergent …

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The Road Goes Ever On: Diplomatic Service In Relation To Award Enforcement Proceedings Against Foreign States, Darius Chan, Louis Lau Jun 2022

The Road Goes Ever On: Diplomatic Service In Relation To Award Enforcement Proceedings Against Foreign States, Darius Chan, Louis Lau

Research Collection Yong Pung How School Of Law

The seemingly straightforward question of what and how a foreign state should be served when an award creditor seeks to enforce an arbitral award against the state has provoked differing views. On one hand, comity requires foreign states to be given notice of proceedings by a formal and predictable method through diplomatic processes. On the other hand, the potential for abuse by states, and practical difficulties of effecting diplomatic service, may exist in certain circumstances. This issue is of practical importance given the rise in cross-border investment with the Belt & Road Initiative and international investment instruments. This case note …

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Empowering The Courts To Order The Use Of Amicable Dispute Resolution: The Singapore Rules Of Court 2021, Dorcas Quek Anderson Jun 2022

Empowering The Courts To Order The Use Of Amicable Dispute Resolution: The Singapore Rules Of Court 2021, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

The civil justice regime in Singapore entered a new phase of radical reforms with effect from 1 April 2022. The reforms have substantially expanded the role of amicable dispute resolution (ADR). Parties have a duty to consider ADR prior to and during civil proceedings. More significantly, the courts have been empowered to order parties to attempt ADR, taking into account the ideals of the Rules of Court and all relevant circumstances. This note analyses the key reforms relating to the use of ADR with reference to comparable English developments. It discusses the broad yet ambivalent scope of ADR that could …

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Inconsistency Crisis And Reformative Proposals Of Investor-State Arbitration System- Umbrella Clauses Considered, Abdallah Elsayed May 2022

Inconsistency Crisis And Reformative Proposals Of Investor-State Arbitration System- Umbrella Clauses Considered, Abdallah Elsayed

Theses and Dissertations

The main purpose of investment treaties is to provide guarantees and protections for the investors in order to maintain the flow of foreign direct investment. As a consequence, when disputed, an adjudicator confronts a dilemma of figuring out the actual intention that the parties consented to. As for umbrella clauses are concerned, an interpreter falls into a loop to attain whether the parties consented to prioritize investor’s interest and elevate any contractual breach to the level of a treaty breach, or to consider the state’s regulatory power. The root could be traced to the interpretation process itself. Human conduct differs …

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Table Of Contents And Masthead, Katelyn Leeveriphan May 2022

Table Of Contents And Masthead, Katelyn Leeveriphan

Pepperdine Dispute Resolution Law Journal

No abstract provided.

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Can Islamic Law Principles Regarding Settlement Of Criminal Disputes Solve The Problem Of The U.S. Mass Incarceration?, Amin R. Yacoub, Becky Briggs May 2022

Can Islamic Law Principles Regarding Settlement Of Criminal Disputes Solve The Problem Of The U.S. Mass Incarceration?, Amin R. Yacoub, Becky Briggs

Pepperdine Dispute Resolution Law Journal

The mass incarceration crisis in the United States (US) remains a vexing issue to this day. Although the US incarcerated population has decreased by twenty-five percent amid the COVID-19 pandemic, the US remains a leading country in the number of incarcerated people per capita. Focusing on Islamic law principles governing settlement in criminal cases, the rehabilitative approach of the Icelandic criminal justice model, and the powerful role of prosecutors in serving justice, this research argues that integrating settlement and mediation into the prosecutorial proceedings will significantly reduce mass incarceration in the US.

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A Reaction To Systemic Inaction: Breaking The Congressional Logjam Where It Counts, Nicholas W. Archibald May 2022

A Reaction To Systemic Inaction: Breaking The Congressional Logjam Where It Counts, Nicholas W. Archibald

Pepperdine Dispute Resolution Law Journal

William Marshall proposed that congressional inaction threatening “the ability of the government to function” should be “subject to constitutional scrutiny.” This article is a response to Marshall’s proposal and offers a potential solution based on alternative dispute resolution rather than the courts. When faced with seemingly insurmountable differences, Congress must look to alternative dispute resolution to reach a breakthrough on critical issues. This paper proposes the creation of a Mediation Office to assist Congress in coming to these breakthroughs. This mechanism could also possibly intervene when the issue is between Congress and the President. Part II of this article will …

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Indiana In The Midst Of #Metoo: The Argument For Enforcing Arbitration In Sexual Harassment Claims, Jonathan Cisneros May 2022

Indiana In The Midst Of #Metoo: The Argument For Enforcing Arbitration In Sexual Harassment Claims, Jonathan Cisneros

Pepperdine Dispute Resolution Law Journal

This note argues that it is in the best interest of sexual harassment victims and the state of Indiana to not follow suit in passing legislation that prohibits employers from requiring mandatory arbitration in sexual harassment cases. This is based on an analysis of the potential factors underlying Indiana’s current lack of legislative movement, the weight of the arguments for and against mandatory arbitration, and consideration of the preemption issues surrounding state laws banning mandatory arbitration. Part II sets the foundation for this note by laying out the most pertinent parts of the FAA and analyzing how the U.S. Supreme …

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You Be The Judge: Analyzing When The Federal Arbitration Act's Judicial Review Standards Apply In State Court, Max Birmingham May 2022

You Be The Judge: Analyzing When The Federal Arbitration Act's Judicial Review Standards Apply In State Court, Max Birmingham

Pepperdine Dispute Resolution Law Journal

This article addresses whether, when the Federal Arbitration Act (“FAA”) governs an arbitration, the FAA’s judicial review standards apply in state court and preempt application of different state law judicial review standards. This argument proceeds as follows: Part I provides an introduction. Part II analyzes the procedural reform intent of the FAA and why the statute seeks to standardize the arbitration process. Part III reviews the judicial review of arbitration awards as promulgated in Hall Street Associates, L.L.C. v. Mattel, Inc. Part IV reviews the generations of FAA cases which have been held to be preempted by SCOTUS. Part V …

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Restricting Double-Hatting To Safeguard International Arbitrations, Yasaschandra Devarakonda May 2022

Restricting Double-Hatting To Safeguard International Arbitrations, Yasaschandra Devarakonda

Pepperdine Dispute Resolution Law Journal

Double-hatting is when an individual plays the dual role of an arbitrator and a legal counsel—a concept first introduced by Professor P. Sands during an IBA conference in 2009. While it hampers the credibility of the arbitral process, its proponents oppose a complete prohibition reflecting on its benefits. The author hypothesizes that this issue has been inadequately addressed in international commercial arbitrations in juxtaposition to international investment arbitrations. Supporting this, the author introduces the concept, tracing its judicial landscape and scholarly discourse in investment arbitrations highlighting the need to adopt a similar approach in commercial arbitrations. Thereafter, the definition of …

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Micro-Mediation: A New First Step On The Mixed-Mode Alternative Dispute Resolution Ladder In Higher Education, Joseph C. Alfe May 2022

Micro-Mediation: A New First Step On The Mixed-Mode Alternative Dispute Resolution Ladder In Higher Education, Joseph C. Alfe

Pepperdine Dispute Resolution Law Journal

Higher education is fraught with disputes on both a macro and micro level. In a broad sense, institutions of higher education serve as a focal point for many disparate cultures, economic strata, ages, genders, races, ideologies, and other societal influences, and concentrates them within an insular community. Such an amalgamation of humanity is bound to produce conflicts of all kinds. These disputes can range from the elementary to the criminal. Title IX of the Educational Amendments of 1972 governs disputes rising to the level of sexual harassment or discrimination and are updated by periodic agency updates disseminated through “dear colleague” …

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Lighting A Spark, Playing With Fire: Feminism, Emotions, And The Legal Imagination Of Campus Sexual Violence, Daniel Del Gobbo May 2022

Lighting A Spark, Playing With Fire: Feminism, Emotions, And The Legal Imagination Of Campus Sexual Violence, Daniel Del Gobbo

Dalhousie Law Journal

Feminist law and policymakers have been inspired by collectively generated experiences of emotion that help to shape what counts as justice and injustice in campus sexual violence cases. Focusing on events surrounding the Dalhousie University Faculty of Dentistry in 2014–2015, this article explains how emotional incitements in the case contributed to an infrastructure that supported formal and specifically carceral responses to campus sexual violence. Correspondingly, this article explains why alternative modes of legal and political formation that challenged the premises of the formal law, including restorative justice, were misread by some commentators as a form of “weak justice” and therefore …

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International Arbitration, Manuel Liatowitsch, Jonathan Blank, Jeffrey Rosenthal, Martine Forneret, Emily Scherker, Peter Ashford, Sabrina Janzik, Julianne Jaquith, Dawn Yamane Hewett, Rebecca Soquier, Helen Tang, Branda Horrigan, Anne Hoffman, Mitchell Dearness, Markus Schifferl, Christopher Boog, Benjamin Gottlieb, Diepiriye Anga, Sergey Morozov, Markian Malskyy, Oksana Karel, Anowar Zahid, Chad Catterwell, Cyril Cotterall-Debay, William Langran, Timur I. Sen, Keara A. Bergin, Christopher P. Denicola May 2022

International Arbitration, Manuel Liatowitsch, Jonathan Blank, Jeffrey Rosenthal, Martine Forneret, Emily Scherker, Peter Ashford, Sabrina Janzik, Julianne Jaquith, Dawn Yamane Hewett, Rebecca Soquier, Helen Tang, Branda Horrigan, Anne Hoffman, Mitchell Dearness, Markus Schifferl, Christopher Boog, Benjamin Gottlieb, Diepiriye Anga, Sergey Morozov, Markian Malskyy, Oksana Karel, Anowar Zahid, Chad Catterwell, Cyril Cotterall-Debay, William Langran, Timur I. Sen, Keara A. Bergin, Christopher P. Denicola

The Year in Review

No abstract provided.

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The Power Of International Nationality Courts When Settling Foreign Investment Disputes, Dr. Ibrahim Refaat El Beherry May 2022

The Power Of International Nationality Courts When Settling Foreign Investment Disputes, Dr. Ibrahim Refaat El Beherry

UAEU Law Journal

States shall be sovereign in determining their nationality in accordance with their economic and social policies and circumstances. However, when international courts decide matters relating to their personal competence in international disputes, they may be called upon to rule on preliminary matters such as nationality. However, when these tribunals confer jurisdiction on themselves by this mission, they enjoy a broad discretion based on the general principles of people’s law, treaty law, case law, doctrine and the principle of jurisdiction-jurisdiction in arbitral matters. However, the scope of this recognized power is limited and its authorized investiture must not exceed the primary …

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Conflicts Of Laws And Jurisdictions In Indonesia-Related Arbitrations Seated In Singapore – Perspectives From The Tribunal, Gary F. Bell Apr 2022

Conflicts Of Laws And Jurisdictions In Indonesia-Related Arbitrations Seated In Singapore – Perspectives From The Tribunal, Gary F. Bell

Indonesia Law Review

This article discusses the issues of conflicts of laws that may arise when the parties, including an Indonesian party, have a contract governed by Indonesian law which includes an arbitration clause that states that the seat of the arbitration is Singapore. After discussing the rules of conflict of laws applicable to the choice of a substantive law governing the contract and the arbitration clause, the article discusses the difficulties that parties and the tribunal often face in an arbitration in which Indonesian law is the governing law. It then discusses conflict rules affecting the validity of the arbitration agreement and …

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