Dispute Resolution and Arbitration Commons^™

Comment On Us Trade And Investment Agreements Submitted To Ustr, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Comments to USTR Re: Review of US Trade and Investment Agreements (July 17, 2017): CCSI, in response to the United States Trade Representative’s request for public comment to inform its performance review of US trade and investment agreements, submitted Comments that focused on the impact that investment protection provisions, enforceable through investor-state dispute settlement, have on rights-compliant, inclusive sustainable development within the United States and abroad.

A Case Against Collaboration, Rachel Rebouché

Maryland Law Review

In family law, as in other legal disciplines, the use of alternative dispute resolution has dramatically increased. In a process called collaborative divorce, separating spouses hire attorneys who agree to work together—almost entirely outside of the court system—to reach a settlement ending the marriage. A team of experts, including mental health professionals, financial neutrals, and parenting coordinators, helps the parties resolve conflicts and settle property, support, and custody disputes. For divorcing couples, the collaborative process promises emotional healing and avoidance of contentious litigation. Advocates for collaborative divorce describe the transformational effects of the process in an evangelical tone.

But collaborative …

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney

Faculty Scholarship

Black's Law Dictionary defines “tort” as a civil wrong for which a remedy may be obtained. In examining both the economics and jurisprudence related to legal malpractice, the article discusses why the “remedy” portion of this definition is unavailable for many victims of legal malpractice. This discussion considers the different stages of a legal malpractice case, including the challenges that injured persons face in retaining experienced counsel to represent them, the anatomy of the legal malpractice case, and the difficulties in collecting judgements or settlements. The discussion will consider how “capture” and “judicial bias” contribute to the “disappearing legal malpractice …

Trial And Error: Legislating Adr For Medical Malpractice Reform, Lydia Nussbaum

Maryland Law Review

The U.S. healthcare system has a problem: hundreds of thousands of people die each year, and over a million are injured, by medical mistakes that could have been avoided. Furthermore, over ninety percent of these patients and their families never learn of the errors or receive redress. This problem persists, despite myriad reforms to the medical malpractice system, because of lawmakers’ dominant focus on reducing providers’ liability insurance costs. Reform objectives are beginning to change, however, and the vehicle for implementing these changes is alternative dispute resolution (“ADR”). Historically, legislatures deployed ADR to curb malpractice litigation and restrict patients’ access …

Submission Regarding Amendments To The Icsid Arbitration Rules, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In March 2017, CCSI submitted comments to the ICSID Secretariat regarding proposed revisions to ICSID’s arbitration rules. CCSI’s submission provided illustrative suggestions for amendments regarding the following issues: recognizing and safeguarding of the rights and interests of non-parties; improving transparency of the dispute resolution process; promoting transparency of ownership over investments; preventing actual and apparent conflicts of interest; addressing concerns raised by third-party funding; ensuring legitimacy of settlement agreements; and ensuring legitimacy of the rule revision process itself.

What Difference Does Adr Make? Comparison Of Adr And Trial Outcomes In Small Claims Court, Lorig Charkoudian, Deborah Thompson Eisenberg, Jamie Walter

Faculty Scholarship

This study compares the experience of small claims litigants who use alternative dispute resolution (“ADR”) to those who proceeded to trial without ADR. ADR had significant immediate and long-term benefits, including improved party attitudes toward and relationship with each other, greater sense of empowerment and voice, increases in parties taking responsibility for the dispute, and increases in party satisfaction with the judiciary. Cases that settled in ADR also were less likely to return to court for an enforcement action within the next year.

Collective Bargaining And Dispute System Design, Rafael Gely

Faculty Publications

This article seeks to reestablish the conversation between collective bargaining and dispute system design scholars. Part II provides a brief description of the system of collective bargaining by focusing on the three key steps of union organizing, contract negotiation, and contract administration. Part III does the same for the literature on dispute system design by identifying some of the seminal literature in the field as well as other work particularly relevant to workplace dispute resolution systems. In Part IV, the article seeks to achieve one modest goal and one that is more ambitious. As to the modest goal, this article …

Using The Terms Integrative And Distributive Bargaining In The Classroom: Time For Change, Rishi Batra

Faculty Articles

The terms "integrative bargaining" and "distributive bargaining" have been with us in the dispute resolution literature since at least the 1960s, when A Behavioral Theory of Labor Negotiations was first published in 1965 by Richard Walton and Robert McKersie. While the terms were popularized by these two authors, the authors themselves acknowledged the long line of predecessors, including Mary Parker Follett, who led them to promote these categories. Since that time, "integrative" and "distributive" have been with us and have captured the imagination of scholars, trainers, and practitioners while remaining popular in the dispute resolution literature today. Despite the proliferation …

When Worldviews Collide—Strategic Advocacy V. A Mediator’S Ethical Obligations, Elayne E. Greenberg

Faculty Publications

(Excerpt)

The provocative headline “Judge Orders Preservation of Mediation Notes In Gender Bias Suit Against Proskauer” sparks the topic of this Ethical Compass discussion. What should be done when a lawyer’s litigation strategy collides with a mediator’s ethical standards of practice? There is growing concern by dispute professionals, including this author, that this collision is diluting the benefits of mediation and re-shaping mediation into quasi-adjudicative dispute resolution procedure. Others hear this as a clarion call from litigators to the mediation community to realize that mediation ideals are just that, and will not deflate litigation advocacy strategies. These polarized perspectives present …

When The Empty Adr Chair Is Occupied By A Litigation Funder, Elayne E. Greenberg

Faculty Publications

(Excerpt)

The discussion about the $140 million jury verdict against Gawker media for posting a sex video of Terry Bollea, professionally known as Hulk Hogan, having sex with his best friend’s wife, quickly shifted to a conversation about the ethics of litigation funding when it was finally disclosed that Peter Thiel had funded Bollea’s litigation. The backstory reveals that Gawker outed Thiel, revealing his homosexuality ten years earlier in a more conservative time when such a revelation might have impacted Thiel’s earning capacity. Thiel, an icon in Silicone Valley and a co-founder of PayPal, promised revenge. Thiel got his revenge, …

The Right To Regulate In Investor-State Arbitration: Slicing And Dicing Regulatory Carve-Outs, Vera Korzun

Vanderbilt Journal of Transnational Law

This Article examines the "right to regulate" as the power of a sovereign state to adopt and maintain government measures for public welfare objectives. It explores how claims by foreign investors in investor-state dispute settlement (ISDS) may interfere with the state's ability to regulate, and how the state can protect its right in international investment agreements. The Article first explains the structure of modern international investment law and dispute resolution. It next turns to the right to regulate and explores why regulatory disputes represent a major challenge for ISDS. It continues by analyzing how exceptions, exclusions, and other safeguard provisions …

Inside The Arbitrator's Mind, Chris Guthrie, Susan D. Franck, Anne Van Aaken, James Freda, Jeffrey J. Rachlinski

Vanderbilt Law School Faculty Publications

Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …

C-Drum News, Fall 2016

The C-DRUM News

No abstract provided.

The Three Phases Of The Supreme Court’S Arbitration Jurisprudence: Empowering The Already-Empowered, Martin H. Malin

Nevada Law Journal

No abstract provided.

An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster

Journal of Dispute Resolution

This study examines a legal experiment that occurred during the height of the global financial crisis. As markets from the United States to Europe to the Global South shook, one country – the United Arab Emirates (U.A.E.) – found itself on the brink of economic collapse. In particular, in 2009 the U.A.E.’s Emirate of Dubai (Emirate) was contemplating defaulting on $60 billion of debt it had amassed. Recognizing that such a default would have cataclysmic reverberations across the globe, Dubai’s governmental leaders turned to a small group of foreign lawyers, judges, accountants, and business consultants for assistance. Working in a …

Dispute Resolution Tools In Patent Infringement Cases: Aoki V. Gilbert, No. 2:11-Cv02787-Tln-Cnd, 2015 Wl 5734626 (E.D. Cal. 2015), Brandon Craig

Journal of Dispute Resolution

While arbitration has become a widely accepted alternative to litigation, the role it should play in patent disputes has been widely debated. Issued by the federal government, patents confer a temporary monopoly on the production, use, and sale of new innovations. The government may have an interest in keeping such disputes out of the private realm of arbitration, at least when the dispute is over the validity of the patent. For other patent issues such as licensing, which is essentially a private contract, arbitration may serve as a useful and cost-effective alternative. Even when arbitration is not warranted, other useful …

Introduction: Judicial Education, Dispute Resolution, And The Life Of A Judge: A Conversation With Judge Jeremy Fogel, Director Of The Federal Judicial Center, Jeremy Fogel Hon., S. I. Strong

Journal of Dispute Resolution

In January and June 2016, Judge Jeremy Fogel, Director of the Federal Judicial Center, sat down with Professor S.I. Strong to discuss a variety of issues ranging from the civil rules amendments and the case management process to judicial education, mediation and the role of the Federal Judicial Center. Judge Fogel also gave his views on what lawyers, academics and the public need to know about the federal judiciary and the task of judging, thereby providing important and unique insights into the judicial process.

Contracts - Jurisdiction - Absent A Strong Showing Of Unreasonableness Or Undue Influence, Parties’ Contractual Selection Of Forum In International Transactions Will Be Valid And Enforceable, Shelley Himel

Georgia Journal of International & Comparative Law

No abstract provided.

Innovation In Arbitration Law: The Case Of Delaware, Christopher R. Drahozal

Pepperdine Law Review

Delaware has become increasingly active in adopting innovative arbitration laws. In 2009, Delaware adopted a confidential system of “arbitration” conducted by sitting Court of Chancery judges, which was subsequently held unconstitutional as violating the First Amendment right of public access to the courts. In 2015, it enacted the Delaware Rapid Arbitration Act (DRAA), creating a system of expedited arbitration in Delaware. Among other things, the DRAA sets mandatory time limits for the completion of arbitration proceedings (with financial penalties for arbitrators who fail to comply), restricts the degree of court involvement in the arbitration process, and provides for expeditious review …

Gateway-Schmateway: An Exchange Between George Bermann And Alan Rau, George Bermann, Alan Scott Rau

Pepperdine Law Review

No abstract provided.

Introduction: International Arbitration And The Courts, Donald Earl Childress Iii, Jack J. Coe Jr., Lacey L. Estudillo

Pepperdine Law Review

What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and international arbitration act in partnership? On April 17, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium …

A Comprehensive Theory Of Civil Settlement, J. J. Prescott, Kathryn E. Spier

Articles

A settlement is an agreement between parties to a dispute. In everyday parlance and in academic scholarship, settlement is juxtaposed with trial or some other method of dispute resolution in which a third-party factfinder ultimately picks a winner and announces a score. The “trial versus settlement” trope, however, represents a false choice; viewing settlement solely as a dispute-ending alternative to a costly trial leads to a narrow understanding of how dispute resolution should and often does work. In this Article, we describe and defend a much richer concept of settlement, amounting in effect to a continuum of possible agreements between …

The Resolution Of Disputes Before The Singapore International Commercial Court, Man Yip

Research Collection Yong Pung How School Of Law

The jurisdictional framework of the Singapore courts has become more nuanced with the establishment of the Singapore International Commercial Court (SICC) on 5 January 2015 and the signing of the Hague Convention on the Choice of Court Agreements 2005 (Hague Convention) on 25 March 2015. Although the Hague Convention has yet to be incorporated in domestic law, it is expected this will happen in the near future. The SICC project, on the other hand, is part of Singapore's strategy to promote the jurisdiction as an international dispute resolution hub. In essence, the SICC is a domestic specialist court established to …

Korean Perspectives On Trade And Investment Multilateral Agreements And Dispute Resolution, Lucy Reed, E. Y. Park, Joongi Kim, Beomsu Kim, Kevin Kim

Pepperdine Dispute Resolution Law Journal

No abstract provided.

The Glucose Model Of Mediation: Physiological Bases Of Willpower As Important Explanations For Common Mediation Behavior, Roy F. Baumeister, W. Scott Simpson, Stephen J. Ware, Daniel S. Weber

Pepperdine Dispute Resolution Law Journal

Success in life requires the ability to resist urges and control behavior. This ability is commonly called “willpower,” the capacity to overcome impulses and engage in conscious acts of self-control. Social psychologists believe willpower is a finite resource dependent on physiological bases including glucose (from food and drink), sleep and other forms of rest, and the absence of stress. In short, people who are hungry, exhausted, or highly stressed tend to have less willpower than those who are well-fed, well-rested, and relatively stress-free. In addition, a person who exerts self-control (uses willpower) tends to reduce temporarily the amount of willpower …

The Intersection Between Legal Risk Management And Dispute Resolution In The Commercial Context, Garrick Apollon

Pepperdine Dispute Resolution Law Journal

This article explains the key advantages and challenges of using LRM to help lawyers managing substantive matters related to the commercial negotiations and disputes, and the key advantage of using ADR techniques for the management of nonsubstantive matters related to commercial negotiations and disputes. This article overall demonstrates that LRM can complement dispute resolution and vice versa. This article also demonstrates how LRM can be utilized in commercial negotiations and mediations.

Finra Dispute Resolution Task Force Releases Its Final Report, With Support For Mediation And Live Hearings, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This article briefly describes the task force’s formation; highlights its key recommendations (such as requiring mediation before arbitration of all claims—subject to party opt-out, and introducing a more affordable, live hearing option for small claims); analyzes in more detail a few more controversial suggestions (such as expressly banning class action waivers in customer agreements and increasing the use of explained awards), and critiques the task force’s inability to reach consensus on other hot-button issues, such as mandatory arbitration.

Reflections On "Innovations In Family Dispute Resolution", Deborah Thompson Eisenberg

Faculty Scholarship

No abstract provided.

A Genesis Of Conflict: The Zero-Sum Mindset, Jonathan R. Cohen

UF Law Faculty Publications

Parties in conflict often operate under the assumption that for one party to win, the other party must lose. This concept, known as the “zero-sum mindset,” can lead to undesirable results, both because it can make disputes harder to resolve and because people holding such beliefs are more likely to get into conflicts to begin with. Over the past several decades, legal educators specializing in dispute resolution have worked hard to challenge that mindset. This task is not simple, for framing conflict in zero-sum terms has very deep cultural roots tracing back at least to the Biblical stories in Genesis. …

Llcs And The Private Ordering Of Dispute Resolution, Peter Molk, Verity Winship

UF Law Faculty Publications

An emerging question in U.S. business law is how the organizational documents of a business entity set the rules for resolving internal disputes. This practice is routine in commercial contracts, which may specify where or how disputes must be resolved. Recent use of litigation provisions in corporation charters and bylaws have sparked controversy, ultimately leading to legislative action to preserve shareholder suits from contractual waiver. Yet despite accounting for the majority of business organizations and sharing features with corporations, non-corporate business entities and their internal dispute resolution process have been largely ignored. How do these non-corporate entities set ex ante …