Dispute Resolution and Arbitration Commons^™

Federalizing Contract Law, Stephen A. Plass

Lewis & Clark Law Review

Contract law is generally understood as state common law, supplemented by the Second Restatement of Contracts and Article 2 of the Uniform Commercial Code. It is regarded as an expression of personal liberty, anchored in the bargain and consideration model of the 19th century or classical period. However, for some time now, non-bargained or adhesion contracts have been the norm, and increasingly, the adjudication of legal rights and contractual remedies is controlled by privately determined arbitration rules. The widespread adoption of arbitral adjudication by businesses has been enthusiastically endorsed by the Supreme Court as consonant with the Federal Arbitration Act …

Comparative Law And International Dispute Resolution Processes: Looking Forward, Looking Back, S. I. Strong

Faculty Articles

The last few years have been momentous ones in the area of cross–border dispute resolution. Numerous countries have sought to bring the innovations of international commercial arbitration into their national legal systems by creating international business courts operating in English and/or with foreign judges sitting alongside national judges, while other jurisdictions have signed onto new international instruments facilitating the resolution of cross–border legal disputes. One of these agreements—the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention on Mediation)—came to fruition in record time (a mere five years from start to finish) and with record adherence (an …

Arbitration Of Worker Contracts: New Prime's Proper Statutory Interpretation Of The 1925 Federal Arbitration Act, Margaret L. Moses

Faculty Publications & Other Works

In 1925, the Congress that adopted the Federal Arbitration Act did not intend for it to cover any workers’ contracts. However, this changed dramatically when the Supreme Court determined in Circuit City Stores, Inc. v. Adams (2001) that all workers’ contracts were covered except for transportation workers. Thus, today, thousands of workers are forced into adhesion contracts requiring arbitration. However, the recent unanimous decision of the Supreme Court in New Prime v. Oliveira unequivocally declares that the proper way to interpret the Act is to give it the meaning it had when Congress enacted the statute. This very reasonable conclusion …

Cullinane V. Uber Technologies, Inc., Carly Schreiber

NYLS Law Review

No abstract provided.

The State Qui Tam To Enforce Employment Law, Andrew Elmore

Faculty Scholarship

This Article examines the states' response to Epic Systems v. Lewis, which held enforceable under the Federal Arbitration Act (FAA) mandatory arbitration agreements that require employees to waive their participation in collective and class actions in employment contracts. Recent evidence shows that mandatory arbitration can erode access to justice for and deterrence of employment law claims. States in response are considering qui tam statutes, which assign the state interests in penalties for employment law violations to private enforcers in return for a bounty, to substitute for the loss of class action enforcement after Epic Systems.

These statutes can …

Disclosure Of Third-Party Funding In International Arbitration, Victoria Sahani

Faculty Scholarship

Third-party funding has evolved into a ubiquitous “feature of modern litigation” that in some jurisdictions is “an accepted and judicially sanctioned activity perceived to be in the public interest.”529 Similarly, third-party funding has become even more prevalent in international arbitration, particularly considering the high dollar amount of most arbitral awards. In addition, several major arbitration seats have officially embraced third-party funding in international arbitration through legislation or court opinions, including Australia, England, and Wales, most of the states in the United States, Germany, the Netherlands, several provinces in Canada, Singapore, Hong Kong, South Africa, and Nigeria (indirectly).530 Furthermore, there are …

Making Sense Of The Arbitrator’S Ruling In Ds 316 Ec And Certain Member States – Measures Affecting Trade In Large Civil Aircraft (Article 22.6-Ec): A Jigsaw Puzzle With (At Least) A Couple Missing Pieces, Petros C. Mavroidis, Kamal Saggi

Faculty Scholarship

“The U.S. won a $7.5 Billion award from the World Trade Organization against the European Union, who has for many years treated the USA very badly on Trade due to Tariffs, Trade Barriers, and more. This case going on for years, a nice victory”, tweeted President Trump’s on October 3, 2019. The United States (US) won not only the highest amount of retaliation ever adjudicated in the history of the WTO but also an ongoing right to retaliate on an annual basis until such time as the EU had complied by either removing the subsidies it granted Airbus or somehow …

From The Frontlines Of The Modern Movement To End Forced Arbitration And Restore Jury Rights, F. Paul Bland, Myriam E. Gilles, Tanuja Gupta

Articles

No abstract provided.

Securing Adequate Legal Defense In Proceedings Under International Investment Agreements: A Scoping Study, Lise Johnson, Brooke Guven

Columbia Center on Sustainable Investment Staff Publications

CCSI prepared a Scoping Study for the Ministry of Foreign Affairs of the Netherlands. Also available are:

• A summary version of the study (33 pages)
• A webinar (March 24, 2020), hosted by CCSI and the Ministry of Foreign Affairs of the Netherlands, discussed the Scoping Study and its findings (see also accompanying slides with speaking notes).
• A webinar organized by UNCITRAL (April 21, 2020). CCSI presented the Scoping Study. A video link of the webinar along with CCSI’s slides are available in English (with speaking notes) and French at that link. CCSI Senior Fellow Karl Sauvant also presented his UNCITRAL …

Foreign Arbitral Awards And The Second Circuit: Enforcement Considerations For Annulments, Calvin Jonker

The Journal of Business, Entrepreneurship & the Law

Many international business transactions integrate an arbitration clause into the agreement as companies choose to keep potential disputes out of the court systems. Enforcement of the awards rendered pursuant to such agreements is straightforward in the United States thanks to the Federal Arbitration Act, as long as the United States is the forum for the arbitration proceeding. Even if the forum is outside of U.S. jurisdiction, several treaties, namely the Panama Convention and the New York Convention, provide for recognition of a foreign arbitrated award by U.S. courts, as well as recognition by U.S. courts of any annulment or suspension …

Using Court-Connected Adr To Increase Court Efficiency, Address Party Needs, And Deliver Justice In Massachusetts, Madhawa Palihapitiya, Susan Jeghelian, Kaila Eisenkraft

Massachusetts Office of Public Collaboration Publications

This report presents research and findings from a study of court-connected ADR commissioned by the Executive Office of the Trial Court (EOTC). The study was conducted by the state office of dispute resolution also known as the Massachusetts Office of Public Collaboration at the University of Massachusetts Boston. The office has been serving as a neutral forum and state-level resource for almost 30 years. Its mission is to establish programs and build capacity within public entities for enhanced conflict resolution and intergovernmental and cross-sector collaboration in order to save costs for the state and its citizens and enable effective problem-solving …

Epic Systems Corp. V. Lewis: Singled Out By Corporations And A Textualist Supreme Court, American Workers Are Left To Fend For Themselves, Grace O'Malley

Maryland Law Review

No abstract provided.

Supporting Party Autonomy In The Enforcement Of Cross-Border Mediated Settlement Agreements: A Brave New World Or Unchartered Territory?, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

The last decade has seen a palpable rise of domestic and international instruments tofacilitate the enforcement of cross-border mediated settlement agreements. The EU MediationDirective required member states to provide for enforcement of such agreements. Common lawjurisdictions including Singapore, Ireland and Ontario have enacted legislation to allowmediated settlement agreements to be recorded as court judgments. Other countries haveprovided for such agreements to be akin to arbitral awards for enforcement purposes. Mostrecently, the United Nations Commission on International Trade Law (UNCITRAL) has agreedto create multilateral convention and to amend the Model Law on International CommercialConciliation to facilitate cross-border enforcement of commercial disputes …

Arbitration And Mediation In Cross Border Disputes: Possibilities And Limitations, Young Hye Chun

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Consenting To Counterclaims Under The Icsid Convention, Harshad Pathak

Pepperdine Dispute Resolution Law Journal

Counterclaims in investment treaty arbitration hold immense significance. Counterclaims have the potential to nullify biases and bolster the confidence of States in investment treaty arbitration. That being said, the multitude of jurisdictional hurdles faced by counterclaims under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) risk dampening the aforementioned potential. It is two of these hurdles emanating from the consensual nature of arbitration that I address herein. Part II of this article commences by analyzing the provisions of the ICSID Convention to derive the prerequisites of a valid counterclaim in investment …

Arbitration In Internal Dispute Resolution Programs: The Scarlet Letter “A” In Sexual Harassment Claims, Sarah Sachs

Pepperdine Dispute Resolution Law Journal

This Comment evaluates the use of arbitration and mediation as effective alternative dispute resolution mechanisms for resolving workplace sexual harassment claims. Part II discusses the legal development of sexual harassment claims in the workplace. Part III evaluates companies who use internal dispute resolution programs with mediation and arbitration to resolve workplace harassment claims. Finally, Part IV analyzes the advantages and disadvantages of companies designing and implementing internal dispute resolution programs to adjudicate workplace sexual harassment claims.

Houston, We Have An Arbitration: International Arbitration’S Role In Resolving Commercial Aerospace Disputes, Carson W. Bennett

Pepperdine Dispute Resolution Law Journal

This article explores the complimentary nature between the burgeoning private aerospace industry and international arbitration, as well as detailing how it could be advantageous to resolve these aerospace disputes in California. Part II outlines the new space race. It begins with the Ansari XPrize and follows some of the industry’s most significant developments. Part III explores the benefits of arbitration and how the characteristics of international arbitral proceedings cater to the common concerns of aerospace companies. Part IV catalogues the initiatives arbitral institutions have taken to customize an arbitration for aerospace disputes. This article argues that a specialized institution could …

Alternatives To Investor-State Dispute Settlement, Lise Johnson, Jesse Coleman, Brooke Güven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

Proponents often explain support for international investment agreements (IIAs) for their ability to: (1) promote investment flows; (2) depoliticize disputes between investors and states; (3) promote the rule of law; and (4) provide compensation for certain harms to investors – objectives of varying degrees of importance to multinational enterprises, home states, host states, and other stakeholders.

While each of these objectives may seem desirable, it is important to consider what exactly they mean and whether IIAs are optimally tailored to achieve them.

This two-part series aims to consider just that. In the first blog installment, we asked of investor-state dispute …

A New Strategy For Regulating Arbitration, Sarath Sanga

Northwestern University Law Review

Confidential arbitration is a standard precondition to employment. But confidential arbitration prevents a state from ensuring or even knowing whether employees’ economic, civil, and due process rights are respected. Further, employers regularly require employees to waive rights to class proceedings (thereby foreclosing small claims) and to arbitrate under the laws of another jurisdiction (thereby evading mandatory state law). In response, states have tried to regulate arbitration provisions, arbitral awards, and arbitral processes. But these efforts have all failed because the Supreme Court says they are preempted by the Federal Arbitration Act.

In this Article, I argue that states can and …

Venezuela Undermines Gold Miner Crystallex's Attempts To Recover On Its Icsid Award, Sam Wesson

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

The Best Of Times And The Worst Of Times: The Current Landscape Of Mandatory Arbitration Clause Enforcement In Domestic Arbitration, Virginia Neisler

Law Librarian Scholarship

There is nothing new about arbi­tration, a method of alternative dispute resolution designed to settle disputes more efficiently, cheaper, and faster than litigation. Today, mandatory arbitration clauses are ubiquitous in commercial contracts, social media terms and conditions, employment contracts, and more. These contracts, where one party in the weaker position (often a consumer or an employee) must either accept or reject the terms as written with no power to negotiate, are known as contracts of adhesion. The widespread use of arbitration clauses—specifically, pre­dispute, forced arbitration agreements, often including class­action waiv ers found in adhesion contracts—has come under pressure.

Finding A Forest Through The Trees: Georgia-Pacific As Guidance For Arbitration Of International Compulsory Licensing Disputes, Karen Mckenzie

Marquette Intellectual Property Law Review

This paper will examine the challenges of international compulsory licensing by examining the issue historically and legally as well as offer possible solutions. Thus, this paper will explore the challenge of balancing corporate interests against the affordability and availability of pharmaceuticals by focusing on discrete situations in developing countries, the history of compulsory licensing, and how the World Health Organization (the “WHO”) and the WTO have attempted to tackle these challenges through compulsory licensing, and it will suggest a possible framework for use in arbitration, which balances equities through a Georgia-Pacific analysis.

The New Singapore Mediation Convention: The Process And Key Choices, Harold Abramson

Scholarly Works

No abstract provided.

Expanding Access To Remedies Through E-Court Initiatives, Amy J. Schmitz

Faculty Publications

Virtual courthouses, artificial intelligence (AI) for determining cases, and algorithmic analysis for all types of legal issues have captured the interest of judges, lawyers, educators, commentators, business leaders, and policymakers. Technology has become the “fourth party” in dispute resolution through the growing field of online dispute resolution (ODR), which includes the use of a broad spectrum of technologies in negotiation, mediation, arbitration, and other dispute resolution processes. Indeed, ODR shows great promise for expanding access to remedies, or justice. In the United States and abroad, however, ODR has mainly thrived within e-commerce companies like eBay and Alibaba, while most public …

Two Bites At The Apple: The Prejudicial Burden In Arbitration Waiver, Alexander H. Weathersby

Georgia Law Review

No abstract provided.

European Decision Could Have Killed Investment Treaties, Affecting Arbitration And Investments, Peter B. Rutledge, Katherine M. Larsen, Amanda W. Newton

Popular Media

A dramatic upheaval in investor-state arbitration last year recently led to the apparent demise of investment treaties throughout Europe and could have broad implications for both international arbitration and foreign investments in the European Union. In May 2018, the Court of Justice of the European Union found in Achmea v. Slovak Republic that the bilateral investment treaty between the Netherlands and the Slovak Republic (a so-called intra-EU BIT) contained an arbitration clause that was incompatible with European law.

Designing And Implementing A State Court Odr System: From Disappointment To Celebration, David Larson

Faculty Scholarship

For the past two and one-third years I have had the pleasure of working with the New York State Unified Court System to design and implement an online dispute resolution (ODR) platform. It truly has been an interesting, educational, at times character-building, and ultimately tremendously valuable experience. This article will share specific design components from the ODR platforms we proposed as well as some of the critical lessons I learned. The hope is that it will be helpful to those either contemplating, or in the process of implementing, a court integrated ODR system.

Contract Creep, Tal Kastner, Ethan J. Leib

Scholarly Works

Scholars and judges think they can address the multiple purposes and values of contract law by developing different doctrinal regimes for different transaction types. They think if we develop one track of contract doctrine for sophisticated parties and another for consumers, we can build a better world of contract: protecting private ordering for sophisticated parties and protecting consumers’ needs all at once. Given the growing enthusiasm for laying down these separate tracks and developing their infrastructures, this Article brings a necessary reality check to this endeavor by highlighting for scholars and judges how doctrine in contract law functions in fact: …

First Principles For Forum Provisions, Daniel B. Listwa, Bradley J. Polivka

Cardozo Law Review de•novo

In this Essay, the authors argue that the Delaware Chancery Court's opinion in Sciabacucchi v. Salzberg, which appeals to territoriality as a decisive “first principle,” is deeply misguided. The notion that each state’s legislative jurisdiction is bounded by its territorial limits is a formalist and arbitrary notion that has been broadly rejected by various jurisdictions, including Delaware. Moreover, an opinion truly grounded in “first principles” would take comity—the basic framework for choice of law in the early Republic—as its lodestar, necessitating a functionally and strategically sensitive approach to determining the validity of the federal forum provisions. In this case, comity …

Med-Arb And Professional Sports: Could Med-Arb Work As An Effective Dispute Resolution Process In Professional Sports?, Taylor Brisco

Marquette Sports Law Review

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