Dispute Resolution and Arbitration Commons^™

The Uncitral Framework For Arbitration In Contemporary Perspective, Alyssa A. Grikscheit

Michigan Law Review

A Review of The UNCITRAL Framework for Arbitration in Contemporary Perspective by Isaak I. Dore

The International Commercial Arbitration Explosion: More Rules, More Laws, More Books, So What?, James H. Carter

Michigan Journal of International Law

Review of The UNCITRAL Framework for Arbitration in Contemporary Perspective by Isaak I. Dore

Arbitration - The Third Circuit Re-Examines Its Traditional Approach To Adjudication Of Erisa Claims, Sarah E. Bouchard

Villanova Law Review (1956 - )

No abstract provided.

Cartesian Logic And Frontier Politics: French And American Concepts Of Arbitrability, Thomas E. Carbonneau, Francois Janson

Faculty Scholarship

This comparative essay represents an attempt to introduce a measure of counterpoise in a growing and much-heralded development in the world law of arbitration. Recent decisional law in the United States, France, and other countries have challenged the strategic significance of the concept of arbitrability in the legal regulation of arbitration. The essay seeks, first, to clarify the function of arbitrability in the law of arbitration and, second, to argue against its judicial deconstruction in either the international or domestic context. The key objective of the analysis is to demonstrate the vital role of demarcation that arbitrability plays between state …

Stuck Between Interlocking Rings: Efforts To Resolve The Conflicting Demands Placed On Olympic National Governing Bodies, Marcia B. Nelson

Vanderbilt Journal of Transnational Law

As the monetary stakes in amateur athletics have increased so have the conflicts between athletes and the organizations that govern them. Caught in the middle of these conflicts are the Olympic National Governing Bodies as they try to implement the rulings of the International Olympic Committee and of the courts in their states. This Note surveys the Olympic organizational structure and the ability of United States athletes to seek relief in United States courts. Also, this Note examines the benefits and detriments of using arbitration to resolve disputes between amateur athletes and governing bodies. This Note concludes that the current …

Recent Developments: The Uniform Arbitration Act, Dan Coughlin, Laura Kintz, John Moore, Melissa Morrow

Journal of Dispute Resolution

This annual Article2 has been prepared since 1983 as a survey of recent developments in the case law interpreting and analyzing various versions of the Uniform Arbitration Act (U.A.A.). 3 Currently, thirty-four states and the District of Columbia have adopted arbitration statutes patterned after the U.A.N 4 The purpose of this analysis is to promote uniformity in interpreting the U.A.A. by explaining the underlying policies and rationales that have developed from recent court decisions.

Wrongful Discharge: Litigation Or Arbitration, Terry A. Bethel

Journal of Dispute Resolution

Throughout the country, courts are scrambling to fill the void left by the rapid disappearance of the employment-at-will doctrine. As recently as twenty years ago, most courts accepted without question the adage that employers were free to terminate employees for a good reason, a bad reason, or no reason at alL1 If motivated to explain this rule, the most frequent defense was that employees enjoyed comparable freedom. They, too, could abandon the relationship for whatever reason they desired.

New Paradigm, Normal Science, Or Crumbling Construct? Trends In Adjudicatory Procedure And Litigation Reform, Jeffrey W. Stempel

Scholarly Works

One aspect of a possible new era is the increasing ad hoc activity of various interest groups, including the bench and the organized bar, primarily pursued through official organizations such as the Judicial Conference, the Federal Judicial Center, the American Bar Association (“ABA”), and the American Law Institute. Traditionally, of course, judges and lawyers have lobbied Congress and state legislatures for litigation change, as demonstrated by the saga of the Rules Enabling Act (“Enabling Act” or “Act”). But, the legal profession's more recent “political” activity regarding litigation reform differs from the traditional model in several ways. First, the participation of …

Arbitration - Sure, But Only On Our Terms: Escape Clauses In Uninsured Motorist Policies - Schaefer V. Allstate Ins. Co., Steven R. Leppard

Journal of Dispute Resolution

Historically, the insurance industry has widely used arbitration to resolve disputes.2 Insurance companies have increasingly included "escape clauses" in their policies.' These clauses allow an insurance company to ignore an arbitrator's award and have a claim directly heard in a trial court if the award exceeds a pre-determined amount.' The Ohio Supreme Court in Schaefer v. Allstate Insurance Co. addressed this issue and decided that the escape clause was unenforceable due to public policy.'

Efficient Injustice: The Demise Of Teh Substantial Injustice Exception To Arbitral Finality - Moncharsh V. Heily & (And) Blase, Michael J. Smith

Journal of Dispute Resolution

Judicial review of an arbitrator's decision has been a point of much controversy and discussion among jurisdictions. Many state legislatures have enacted arbitration statutes that list the grounds for review of an arbitrator's decision. However, over time, the courts have also developed some common law grounds for judicial review. Conflict often arose when a state's statute did not provide for review on the same grounds as common law. This Note examines how the California Supreme Court dealt with the difference in the statutory and common law grounds for judicial review of an arbitrator's decision.

Caesar Would Have Arbitrated, Hugh D. Spitzer

Articles

With the recent increase in mandatory arbitration for small civil disputes and voluntary arbitration for much larger cases, it is easy to suppose that dispute resolution by someone other than a government- appointed judge is a novel, imaginative creation of the modern legal system.

But for the Romans who lived in Julius Caesar's time, indeed from several hundred years B.C. to at least 300 A.D., most civil matters never went to an official "judge." Instead, almost all such disputes were resolved by a lay arbitrator under a remarkably flexible and enduring system of civil procedure that worked as effectively as …

Recent Developments: The Uniform Arbitration Act, Angela C. Cole, Nicole J. Cress, Kevin L. Fritz, Lori L. Green

Journal of Dispute Resolution

Arbitration, once viewed as an undesirable alternative to litigation, has become widely accepted as a viable and often superior cost-effective approach to resolving disputes. In 1955, the national Conference of Commissioners on Uniform State Laws proposed a Uniform Arbitration Act.' Currently, 35 jurisdictions have arbitration statutes patterned after the U. A.A..' What began as an article in the Missouri Law Review entitled Recent Developments: The Uniform Arbitration Act, has evolved into an annual survey of recent developments in case law interpreting state versions of the U.A.A.' This detailed update monitors the underlying principles and rationales that develop from recent decisions. …

Punitive Damages In New York Arbitration: Who Is Really Being Punished - Barbier V. Shearson Lehman Hutton, Inc. , Brian R. Hajicek

Journal of Dispute Resolution

Promotion of settlement to reduce litigation is a well-established policy goal in our federal court system.2 However, when parties cannot resolve all of their disputes in alternative dispute resolution, this policy goal is undermined. In arbitration governed by the law of the state of New York, parties are generally unable to resolve all of their disputes in arbitration when punitive damages would be warranted. In most cases, the parties' dispute cannot be fully resolved where punitive damages would be available because an arbiter is not free to award punitive damages in arbitration under New York law. This is particularly troublesome …

Further Thoughts On Deferral To Private Dispute Resolution Procedures: A Response, Leonard Page, Daniel W. Sherrick

University of Michigan Journal of Law Reform

We would first like to respond to one aspect of Levy's Article before discussing our proposal. Levy seems to argue as a general matter that "joint committee" determinations should not receive the same deference as arbitral resolutions. After establishing some of the basic analytic parameters in Part I of this Response, we argue in Part II that Levy's distinction between joint committees and arbitral resolutions has no relevance to disputes concerning contractual rights, and is useful only in the context of disputes concerning statutory rights. In Part III, we outline a framework for analyzing internal union review procedures that will …

Deferral To The Intraunion Appellate Process: A Response, Paul Alan Levy

University of Michigan Journal of Law Reform

In their recent Article on the deferral policy of the National Labor Relations Board (Board or NLRB), two attorneys for the United Auto Workers (UAW), Leonard Page and Daniel W. Sherrick, argue that the Board has adopted "an indefensible double standard" by applying its policy of "deferral to arbitration" only to contractual dispute resolution processes but not to intraunion review procedures. By deferring to intraunion procedures, they contend, the Board would further many of the same policy objectives it now achieves by deferring to arbitration, with the added benefit of advancing the interest in democratic union self-government. Moreover, by drawing …

Adr Prominent Part Of "The Basics" At Um Law School, Gregory S. Munro

Faculty Journal Articles & Other Writings

This article describes the University of Montana School of Law's Dispute Resolution Track, a comprehensive and carefully ordered program designed to provide students entry-level competency in handing disputed legal rights in the criminal and civil justice systems.

Prospects For Adr In Patent Disputes: An Empirical Assessment Of Attorneys' Attitudes, Thomas G. Field Jr., Michael Rose

Law Faculty Scholarship

For the most part, parties with a legal dispute have either settled their differences or, when that wasn't possible, litigated them. However, alternative dispute resolution (ADR) is increasingly urged as a supplement or substitute in a wide range of areas. ADR usually involves at least one third party who is employed by neither the judicial system nor one of the parties to the dispute. The third party may be a mediator, who helps the parties reach settlement, or an arbitrator, who renders a decision. While arbitration has been widely used for many years, until very recently, mediation (or conciliation) was …

Drafting Dispute Resolution Clauses For Western Investment And Joint Ventures In Eastern Europe, Mary Theresa Kaloupek

Michigan Journal of International Law

This Note discusses issues the practitioner should consider in drafting a dispute resolution provision for a client investing in one of the newly democratizing countries. Part I will discuss arbitration law in Eastern Europe; the dispute resolution provisions in the various foreign investment laws; the applicable national law; and each nation's enforcement procedures for arbitral awards issued in other nations. Part II reviews the dispute resolution provisions in various bilateral and multilateral treaties relating to foreign investment including the Convention on the Settlement of Investment Disputes (ICSID Convention) and the informal agreements between the American Arbitration Association (AAA) and the …

A Primer On Resolving Disputes: Lessons From Alternative Dispute Resolution, Harold I. Abramson

Scholarly Works

No abstract provided.

Tax Liability And Inarbitrability In International Commercial Arbitration, Thomas E. Carbonneau, Andrew W. Sheldrick

Faculty Scholarship

This essay engages in a narrow but crucial inquiry into the limits the inarbitrability defense may now impose upon the exercise of arbitral jurisdiction. While it is assumed that matters relating directly to status and capacity, testamentary dispositions, and title to immovable property fall outside the jurisdictional reach of international arbitrators, the question becomes whether any national regulatory laws, such as tax laws, benefit from the same status of inviolability.

Arbitration And Salary Inflation In Major League Baseball, Deborah R. Swank

Journal of Dispute Resolution

Major league baseball has undergone significant changes since its inception over a century ago.2 While the game itself remains basically the same, the system governing management and player relations is hardly the same as it was even twenty years ago.' In years past, team owners exercised absolute authority over terms of players' employment including player mobility and salary levels. 4 Under this system, players essentially had no voice in salary determinations and players were contractually restricted from signing with another team.5 Players were forced either to accept the terms as offered by management or to quit the game altogether.6

L'Arbitrage Et Le Recouvrement Des Prêts Consentis À Des Débiteurs Étrangers, William W. Park

Faculty Scholarship

L'auteur explore le rile complexe de 'arbitrage dans le rglement des difflrends financiers intemationaux impliquant des dettes privies et publiques. II onus rappelle que le diveloppement 6conomique global bnlficie d'un climat de confiance dons les relations commerciales internationales. Los doctrines juridiques et les procidures qui ajoutent de l'incertitude dans le processus de remboursement des prfts ne peuvent que freiner I'allocation de crdits qui pourraient autrement favoriser le commerce et l'investissement outre-frontikre, particuli~rement dons les pays en vole do diveloppement.

The author explores the complex role of arbitration in the settlement of international financial controversies involving both private and public debt. …

Recent Developments: The Uniform Arbitration Act, Scott Blair, Amy Brice, Robert Carroll, Chuck Hatfield

Journal of Dispute Resolution

Since 1983, this annual Article 2 has been prepared to provide a survey of recent developments in the case law interpreting and applying the various state versions of the Uniform Arbitration Act3. The purpose is to promote uniformity in the interpretation of the U.A.A. by developing and explaining the underlying principles and rationales courts have applied in recent cases.

Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel

Journal of Dispute Resolution

The clouded case law of Section l's employment contract exception presents an opportunity to improve the fairness and function of the Arbitration Act, an opportunity the bench has failed to grasp for nearly a half-century. Part II of this article reviews the case law surrounding the judicial construction of what constitutes a "class of workers engaged in interstate commerce," with courts generally holding that the employment contract exception affects only workers directly involved in interstate movement of objects. This view fails to further the overall goals of the Act and undermines the judicial goal of fairness. Recently, the Supreme Court …

Arbitration Allocates Costs Of Hazardous Waste Cleanup Claim Under Superfund, Nancy P. O'Brien

Journal of Dispute Resolution

With the growth in volume and complexity of environmental enforcement cases, alternative dispute resolution (ADR) has assumed increasing importance in the allocation of costs among liable parties. At the same time, the growth is less than might be expected because of obstacles in both the governmental and private sectors. This dichotomy is especially evident in cases involving pollution from hazardous wastes. 4

Injunctions Pending Arbitration: Do The Courts Really Have Jurisdiction, Elizabeth Phillips

Journal of Dispute Resolution

The issue of injunctive relief pending arbitration stems from the language of the Federal Arbitration Act (FAA), 5 which compels arbitration.16 The instant decision falls within the growing majority of cases holding that the issuance of an injunction to preserve the status quo pending arbitration fulfills the court's obligation under the FAA to enforce a valid agreement to arbitrate. 7

Tolerance: The Bridge Between Religious Liberty And Privacy, David Rudenstine

Cardozo Law Review

No abstract provided.

Trial By Jury

Touro Law Review

No abstract provided.

Drafting The Dispute Resolution Clause, Whitmore Gray

Book Chapters

Providing in a contract for ways to resolve disputes that may arise presents a substantial challenge to the lawyer. In one sense, this is what a lawyer regularly does in contract drafting-anticipating misunderstandings or problems that experience has indicated are likely to arise, and trying to provide clear solutions in advance. When it comes to drafting a specific clause for the resolution of further disputes that may arise, however, many lawyers are at a substantial disadvantage. The task comes at the end of the substantive negotiations. The client does not want to focus on, or draw the other party's attention …

Statutory Claims Under Erisa: Is Arbitration The Appropriate Forum, Amy L. Brice

Journal of Dispute Resolution

The Employment Retirement Income Security Act of 1974 (ERISA) 2 provides a regulatory scheme for the myriad of employee benefit plans that affect so many workers and their families today. 3 One ERISA issue is whether claims under the Act may be arbitrated or if they must be heard in a judicial forum. The Supreme Court has not yet spoken on this issue, but the district court in Southside Internists Group PC Money Purchase Pension Plan v. Janus Capital Corp. relied on the Supreme Court's determinations of arbitrability in various other cases 4 to conclude that ERISA claims may be …