Dispute Resolution and Arbitration Commons^™

Rationalizing Costs In Investment Treaty Arbitration, Susan Franck

Scholarly Articles in Law Reviews & Journals

International investment and related disputes are on the rise. With national courts generally unavailable and difficulties resolving disputes through diplomacy, investment treaties give investors a right to seek redress and arbitrate directly with states. The costs of these investment treaty arbitrations - including the costs of lawyers for both sides, as well as administrative and tribunal expenses - are arguably substantial. This Article offers empirical research indicating that even partial costs could represent more than 10% of an average award. The data suggested a lack of certainty about total costs, which parties had ultimate liability for costs, and the justification …

The Dispute On The Horizon: Contracting For Effective Dispute Resolution In International Business Transactions A U.S. Perspective, William P. Johnson

All Faculty Scholarship

This Article offers a view, from a U.S. perspective but for a non-U.S. readership, on the significant aspects of planning for dispute resolution in the context of cross-border business transactions involving U.S. and non-U.S. parties. Specifically, this Article identifies the issues that parties who are located in Brazil or in other jurisdictions throughout the Americas should consider at the time of drafting, negotiating, and finalizing business contracts with U.S. counterparties, as well as business contracts that are entered into in connection with other cross-border arrangements that could involve U.S. law even when there is no U.S. counterparty, to prepare for …

Mediating Multiculturally: Culture And The Ethical Mediator, Carrie Menkel-Meadow, Harold I. Abramson

Georgetown Law Faculty Publications and Other Works

This commentary on mediating multiculturally in a chapter of Mediation Ethics (edited by Ellen Waldman) suggests there are times when mediators should not mediate, because of their own ethical commitments. Commenting on a hypothetical divorce scenario (of Ziba, a 17 year old from her 44 year old husband, with two children aged 3 and 2, where the parties claim to want Shari’a principles to apply), the author (Carrie Menkel-Meadow) suggests that she would not mediate a case which might violate formal laws (American marriage and divorce laws) or infringe on rights that one of the parties might not be fully …

Mediation Representation: Representing Clients Anywhere, Harold Abramson

Scholarly Works

No abstract provided.

It’S A Small World After All: Cultural Competence For Advocates In Dispute Resolution Processes, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Cultural competence has become an ethical mandate for all neutrals and advocates who use dispute resolution. Even though conflict is a universal phenomenon, our expression and choice of how to resolve conflict is culture specific. As our world becomes increasingly smaller, and flatter, and our law practices become globalized, ethically responsible attorneys are recalibrating their ethical compass and replacing their ethnocentric lens with a culturally relative lens. Yes, even if you are a New York attorney who disavows any international practice and remains steadfastly tethered to the N.Y. Rules of Professional Conduct, you still need to be culturally competent. …

The Globalized Practice Of Law: Part Two - It’S A Small World After All: Cultural Competence With Your International Brethren, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Globalization is a “force majeure” that is growing and shaping the practice of law. As increasing numbers of New York lawyers represent clients in transnational and cross-border matters, many New York attorneys are welcoming the enriching perspectives that their international brethren bring to deal making and dispute resolution. However, culturally competent lawyers are also cognizant of how the different and sometimes disparate ethical obligations and values held by their colleagues from civil law countries are influencing and, at times, complicating their dispute resolution efforts. In the previous column, I discussed how our perceptions, communications and preferential modes for resolving …

The End Of Mandatory Securities Arbitration?, Jill I. Gross

Pace Law Review

No abstract provided.

C-Drum News, V. 4, No. 1, Fall 2010

The C-DRUM News

No abstract provided.

Helping Good Lawyers Help Clients Make Good Decisions About Dispute Resolution, John M. Lande

Faculty Publications

Counseling clients about dispute resolution options is easier said than done. These can be complex and difficult decisions, and lawyers may not have appropriate resources to help lawyers counsel clients in choosing dispute resolution options. While establishing rules requiring this kind of training may help to remedy this shortcoming, perhaps the most promising involves using dispute systems design (DSD) procedures to establish better ways of training lawyers to counsel clients.

Private Transfer Fee Covenants: Cleaning Up The Mess, R. Wilson Freyermuth

Faculty Publications

The purposes for creating a "private transfer fee" covenant range from supporting community services to creating a future revenue stream for the developer. Traditionally, courts examined these covenants using the touch and concern standard. The Restatement (Third) of Property: Servitudes, however, rejects this standard. This Article discusses this new approach as it relates to private transfer fees. The author argues that private transfer fee covenants are contrary to public policy and encourages states to enact legislation limiting the enforcement of these covenants.

Four Mediation Stories From Across The Globe, Nadja Alexander

Research Collection Yong Pung How School Of Law

In the past 30 years mediation has emerged as a significant dispute resolution narrative around the world. It contains many stories told by different story-tellers -- stories about diverse practices, communities and courts, in creasing institutionalisation, regulation, accreditation, standards, research and theoretical developments. Together these stories weave a tapestry of our social and cultural experience of mediation and define mediation as a narrative, a practice and a profession.

Legislating In The Light: Considering Empirical Data In Crafting Arbitration Reforms, Amy J. Schmitz

Faculty Publications

Consumer advocates and policymakers call for abolition of predispute arbitration clauses in consumer contracts, while proponents of arbitration claim such abolition would increase companies’ dispute resolution costs, leading to higher prices and interest rates. Policymakers on both sides of the debate, however, rarely consider the empirical research necessary for crafting informed arbitration disclosure rules. This article therefore focuses on how varied research, including my own empirical studies, may inform policies regarding arbitration disclosure regulations. The article also offers suggestions for regulations tailored to have the most impact for the cost in light of this research.

Expanding The Nafta Chapter 19 Dispute Settlement System: A Way To Declaw Trade Remedy Laws In A Free Trade Area Of The Americas?, Stephen J. Powell

UF Law Faculty Publications

Chapter 19 of the NAFTA transfers judicial review of U.S., Canadian, and Mexican government investigations under the controversial anti-dumping and countervailing duty (AD/CVD) laws from national courts to binational panels of private international law experts. The system stands as a unique surrender of judicial sovereignty to an international body, a hybrid of national courts and international dispute settlement with as yet no parallel in the world of international trade or other international law regimes. Binational panel decisions have been controversial because agencies chafe at their intimate examination of agency findings and supporting evidence. Panels also are viewed as substantially more …

Order At The End Of Life: Establishing A Clear And Fair Mechanism For The Resolution Of Futility Disputes, Ashley Bassel

Vanderbilt Law Review

On January 22, 2008, Ruben Betancourt was admitted to Trinitas Regional Medical Center in New Jersey for surgery for malignant thymoma, a cancer of the thymus gland (a small organ underneath the breastbone).' Following surgery, the patient developed brain damage due to lack of oxygen and, as a result, lapsed into unconsciousness. For the next five months, Mr. Betancourt was admitted to various medical facilities and readmitted finally to Trinitas in July 2008 for renal failure. For six more months, the unconscious patient remained in the hospital on an artificial ventilator, receiving renal dialysis and nutrition through tube feeding.

The …

Legal Bargaining Theory's New "Prospecting" Agenda: It May Be Social Science, But Is It News?, Robert J. Condlin

Faculty Scholarship

In the good old days legal bargaining scholarship was based mostly on negotiator war stories exuberantly told. The social-scientific study of the subject did not begin in earnest until the nineteen-seventies. Since then, however, the literature of storytelling has gone into a pronounced eclipse and social-scientific study is now the principal scholarly game in town. This article questions the wisdom of this shift, almost seismic in its proportions, and argues that it is too soon to jump on the social science bandwagon. Discussion focuses on the uses made of the Prospect Theory of Daniel Kahneman and Amos Tversky and the …

Whose Dictionary Controls?: Recent Challenges To The Term "Investment" In Icsid Arbirtration, Joseph M. Boddicker

American University International Law Review

No abstract provided.

The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John M. Lande, Jean R. Sternlight

Faculty Publications

This Article briefly reviews the long history of critiques of legal education that highlight the failure to adequately prepare students for what they will and should do as attorneys. It takes a sober look at the hurdles reformers face when trying to make significant curricular changes and proposes a modest menu of reforms that interested faculty and law schools can largely achieve without investing substantial additional resources.This Article emphasizes the special contributions that alternative dispute resolution (ADR) can provide to legal education more generally. ADR instruction is an important corrective to a curriculum that routinely conveys the erroneous implication that …

‘Drive-Thru’ Arbitration In The Digital Age: Empowering Consumers Through Regulated Odr, Amy J. Schmitz

Faculty Publications

Online Dispute Resolution (ODR) has been promoted for quickly and conveniently resolving claims using online “drive-thru” processes instead of more costly and time-consuming face-to-face meetings and hearings. Most commentators have nonetheless focused mainly on non-binding or automated bidding processes, perhaps due in part to fairness concerns associated with off-line arbitration. This Article, however, explores the potential for online binding arbitration (OArb), and sheds new light on arbitration as means for empowering consumers to obtain remedies on their e-merchant claims. By moving arbitration online, OArb helps address concerns regarding companies’ use of arbitration clauses to curb consumers’ access to remedies on …

The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, Jean R. Sternlight

Scholarly Works

This Article briefly reviews the long history of critiques of legal education that highlight the failure to adequately prepare students for what they will and should do as attorneys. It takes a sober look at the hurdles reformers face when trying to make significant curricular changes and proposes a modest menu of reforms that interested faculty and law schools can largely achieve without investing substantial additional resources. This Article emphasizes the special contributions that alternative dispute resolution (ADR) can provide to legal education more generally. ADR instruction is an important corrective to a curriculum that routinely conveys the erroneous implication …

On The Continued Vitality Of Securities Arbitration: Why Reform Efforts Must Not Preclude Predispute Arbitration Clauses, Alicia J. Surdyk

NYLS Law Review

No abstract provided.

Beyond The Polemics: Realistic Options To Help Divorcing Families Manage Domestic Violence, Elayne E. Greenberg

Faculty Publications

Children, adult survivors, and their batterers who remain engaged in violence, even after they live apart, are living legacies of the historical perniciousness of domestic violence, a legacy that must change. True, over the past thirty years the politicization of domestic violence has raised public awareness, spurred legislative reforms, and propelled court innovations. However, the children, survivors, and batterers who still live domestic violence after divorce know all too well that all of our political advancements, legal victories, court innovations, and social awareness have not stopped the violence they live within their day-to-day lives. For many of these families, an …

Dispute Resolution Lessons Gleaned From The Arrest Of Professor Gates And "The Beer Summit", Elayne E. Greenberg

Faculty Publications

America's fantasy of a post-racial society was shattered on July 16,2009, when a white police officer arrested Harvard Professor Henry Louis Gates, a well-respected African-American academic, in his own home. Our historical racial fissure was widened. Once again, our thoughts were plagued with tortured images of our system of racialized law enforcement: the torture of Abner Louima, the beating of Rodney King, the killing of Amadou Diallo. Predictably, Americans became further polarized, as they simultaneously blamed and defended responses to racism.

In what was perceived by some as a dramatic and unanticipated turn of events, and perceived by others as …

What Is '(Im)Partial Enough' In A World Of Embedded Neutrals?, Nancy A. Welsh

Faculty Scholarship

The Supreme Court’s decision in Caperton v. A. T. Massey Coal Co. highlighted the fragility of judicial independence and impartiality in the United States. A similar, less-noticed fragility of independence and impartiality exists among the arbitrators, mediators and administrative hearing officers who resolve an increasing number of disputes. Everywhere one looks, there is unremarked yet remarkable evidence of the rise of - embedded neutrals, particularly in uneven contexts between one-time and repeat players. This phenomenon becomes particularly worrisome when the embedded neutral’s role is due to their special relationship with the repeat player, and the one-time player is not as …

Effect Of Shari'a On The Dispute Resolution Process Set Forth In The Washington Convention, The, Andrew Smolik

Journal of Dispute Resolution

This article will provide an overview of Shari'a law with respect to arbitration. Section I provides an overview of principles of Shari'a and its development. Section II discusses Islamic jurisprudence and the different schools of Islamic jurisprudence. Section III provides a discussion of the different schools of Islamic jurisprudence. Section IV provides a history of arbitration in the Middle East from the period before Muhammad to today. Section V gives a brief overview of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Sections VI and VI discuss issues regarding choice of …

Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten

Faculty Publications

Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions. In CL, the lawyers and clients sign a "participation agreement" promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the "disqualification agreement" signed by parties (and sometimes by attorneys) which provides that both CL lawyers would be disqualified from representing …

Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson

All Faculty Scholarship

This Article explores what is and what is not in adjudication and mediation, thus illuminating the profound differences between these two processes. The Article does this work in four parts. First, it offers an analysis of cognitive mapmaking and its inevitability in constructing meaning. It then explores how adjudication defines meaning in a particular way. This Article then conducts a comparable analysis of mediation. Finally, it focuses on the bridging function attorneys play between the worlds of mediation and adjudication.

You've Got Your Mother's Laugh: What Bankruptcy Mediation Can Learn From The Her/History Of Divorce And Child Custody Mediation, Nancy A. Welsh

Faculty Scholarship

Due to our current deep economic woes, growing bankruptcy filings, and apparent legislative unwillingness to expand the number of judges, bankruptcy courts are exploring the use of mediation to help resolve adversary proceedings, negotiate elements of reorganizations, and deal with claims that cannot be heard directly in bankruptcy proceedings. In addition, mediation advocates have been consistent in urging greater use of the process to reduce debtors’ and claimants’ costs, bridge the jurisdictional and standing challenges that bankruptcies can pose, and offer claimants the opportunity to be heard and determine their own resolution of claims. At this point, the relatively few …

Chronicling The Complexification Of Negotiation Theory And Practice, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The essay reviews the content of twenty-five years of the Harvard Program on Negotiation's Negotiation Journal, identifying themes and issues explored on its pages in the past, the current issues challenging the field’s scholars and practitioners, and the issues likely to confront us in the future. It argues that while we in the field hoped for simple, elegant, and universal theories of negotiation and conflict resolution, the last twenty-five years have demonstrated the increasing complexification of negotiation theory and practice, from increased numbers of parties and issues, and dilemmas of intertemporal commitments, ethics, accountability, and relationships of private action to …

C-Drum News, V. 3, No. 1, Fall 2009

The C-DRUM News

No abstract provided.

C-Drum News, V. 2, No. 2, Spring 2009

The C-DRUM News

No abstract provided.