Dispute Resolution and Arbitration Commons^™

International Arbitration Is Not Your Father's Oldsmobile, Kenneth F. Dunham

Journal of Dispute Resolution

This article provides a short prospectus for the unwary lawyer who must venture into unfamiliar territory abroad. Although there are numerous arbitral forums available in countries all over the world, this article will focus primarily on the LCIA and the ICC. Following a brief history of international arbitration and the history of these two international arbitral forums, the article will discuss some of the major issues in international arbitration such as forum selection, issue preclusion and procedural matters. This article also includes sections on appealing awards and enforcement of awards under existing international treaties. The article is brought to a …

Current Issues In The Enforcement Of International Arbitration Awards, Joseph E. Neuhaus

University of Miami Inter-American Law Review

No abstract provided.

The Recent Wave Of Arbitrations Against Argentina Under Bilateral Investment Treaties: Background And Principal Legal Issues, Paolo Di Rosa

University of Miami Inter-American Law Review

No abstract provided.

Clash And Convergence On Ethical Issues In International Arbitration, John M. Townsend

University of Miami Inter-American Law Review

No abstract provided.

The Specificity Of International Arbitration: The Case For Faa Reform, William W. Park

Faculty Scholarship

If a pollster asked a random selection of Americans for a one-line verbal portrait of arbitration, common responses might include the following: (i) private litigation arising for construction and business disputes; (ii) a mechanism to resolve workplace tensions between management and labor; (iii) a process by which finance companies and stock brokers shield themselves from customer complaints; (iv) a way to level the playing field in deciding commercial controversies among companies from different parts of the world; (v) the way big corporations use NAFTA to escape regulation. To some extent all would be correct.'

Unfortunately, these different varieties of arbitration …

The Specificity Of International Arbitration: The Case For Faa Reform, William W. Park

Vanderbilt Journal of Transnational Law

Arbitration by its nature is polycentric: one might more accurately speak of arbitrations in the plural. A wide variety of disputes are included in one category, implicating differences related to the sophistication of the parties, the character of the disputes, and the public interests at stake. The current legal framework for arbitration conducted in the United States attempts to squeeze all types of arbitration into the Procrustean bed of a single set of standards for judicial review.

The United States should seriously consider eliminating judicial discretion to review the substantive merits of awards in international cases. The domestically nourished doctrine …

The American Influence On International Arbitration, Roger P. Alford

Journal Articles

It is indisputable that the international arbitration world is an identifiable epistemic community that transcends national borders, and whose members are shaped by their own experience. Increasingly, that experience reflects an American influence, be it heritage, training, affiliation, or client base. In these remarks, Professor Alford addresses three issues related to the Americanization of international arbitration. The first is whether international arbitration has, in fact, only recently become Americanized. He posits instead that there is always an ebb and flow to the level of the United States' involvement in international arbitration. During the drafting and signing of the 1958 New …

Fit And Functional In Legal Ethics: Developing A Code Of Conduct For International Arbitration, Catherine A. Rogers

Michigan Journal of International Law

In this Article, the author develops a methodology for prescribing the normative content of a code of ethics for international arbitration, and in a forthcoming companion article, integrated mechanisms for making those norms both binding and enforceable are proposed. In making these proposals, the author rejects the classical conception of legal ethics as a purely deontological product derived from first principles. This Article argues, instead, that ethics derive from the inter-relational functional role of advocates in an adjudicatory system, and that ethical regulation must correlate with the structural operations of the system. The fit between ethics and function, the author …

Context And Institutional Structure In Attorney Regulation: Constructing An Enforcement Regime For International Arbitration, Catherine A. Rogers

Faculty Scholarship

The question that looms large over the future of international arbitration is: How much should states yield to the international arbitration system? This Article attempts to answer the question as it applies to the specific context of regulating attorney conduct.

The Ballad Of Transborder Arbitration, Thomas E. Carbonneau

Faculty Scholarship

International commercial arbitration (ICA) is many things positive. Because business transactions cannot take place without a functional system of adjudication,ICA has enabled parties to engage in and pursue international commerce. As a result, it has had an enormous impact upon the international practice of law, the structuring of a de facto international legal system, and the development of a substantive world law of commerce. In a word, ICA has been a vital engine in the creation of a transborder rule of law. Furthering this design, the arbitral "method"has even been applied to the unruly political problems that attend international trade …

Fit And Function In Legal Ethics: Developing A Code Of Conduct For International Arbitration, Catherine A. Rogers

Faculty Scholarship

In this Article, I develop a methodology for prescribing the normative content of a code of ethics for international arbitration, and in a forthcoming companion article, I propose integrated mechanisms for making those norms both binding and enforceable. In making these proposals, I reject the classical conception of legal ethics as a purely deontological product derived from first principles. I argue, instead, that ethics derive from the interrelational functional role of advocates in an adjudicatory system, and that ethical regulation must correlate with the structural operations of the system. The fit between ethics and function, I will demonstrate, not only …

Role Of Federal Courts In Assisting International Arbitration - National Broadcasting Co. V. Bear Stearns & (And) Co., The, Thurston K. Cromwell

Journal of Dispute Resolution

This Note examines a Second Circuit decision that determined private, international arbitration proceedings do not qualify for the same discovery assistance as do foreign, governmental proceedings under 28 U.S.C. § 1782 ("§ 1782"). This Note will focus on the Second Circuit's controversial interpretation of § 1782 and its impact on the future of private, international arbitration.

Is There A Growing International Arbitration Culture?, Whitmore Gray

Book Chapters

The topic given to Prof. Taniguchi and myself for this opening session is a question, "Is there a growing international arbitration culture?" This seems to call for a survey of attitudes and practices peculiar to international arbitration in order to answer the question. The more extended comment of the organizers assumes, as most of us would, however, that such a culture exists, and assigns to us the task of considering what laws and rules are now being developed to implement this "international culture". We also noted that the organizers expressed their conviction that this Conference must have practical and cultural …

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.

Can Buckley Clear Customs?, Harold H. Bruff

Publications

No abstract provided.

Introduction To Symposium: Achieving Justice In Arbitration, Thomas E. Carbonneau

Faculty Scholarship

This symposium attests to the depth of scholarship that now surrounds the law of arbitration and to arbitration's widening adjudicatory mission in matters international and domestic. Authored by senior and emerging scholars who share a commitment to professional excellence, the various contributions not only assure continuity in arbitral scholarship, but also underscore the growing sophistication of arbitral practice and illustrate the complexity of the relationship between arbitration and the legal process. This symposium represents an inquiry into the convergence and divergence of legal and arbitral adjudicatory values and what impact these similarities and differences might have upon the functioning and …

Enforcing International Arbitration Agreements - Marchetto V. Dekalb Genetics Corp., Karen L. Massey

Journal of Dispute Resolution

The importance, magnitude and frequency of international business transactions have necessitated finding an acceptable method of resolving disputes arising from such transactions. Parties to international commercial transactions often come from nations with cultures and legal systems which are greatly diverse.2 Arbitration agreements in international commercial contracts are a preferred manner of resolving disputes.3 Arbitration is a method of providing orderliness and predictability in an area in which it is necessary, but often difficult to achieve.4 In order for the arbitration system to work, courts of law must be willing to relinquish their jurisdiction and allow the arbitration system to resolve …

America And Other National Variations On The Theme Of International Commercial Arbitration, Thomas E. Carbonneau

Faculty Scholarship

Despite attempts at harmonization through treaty relations and State participation in multilateral organizations, the international arena is a composite of unsettled and unsettling structures. The volatility of global politics and discordant national perceptions of legitimate lawful conduct constitute a precarious, usually unsuitable, basis for an international rule of law. Domestic concepts of legality rarely serve as adequate instruments for molding the character of international relations. The irreducible principle of national sovereignty makes the world community resistant to the adoption of universal juridical standards and consecrates the fragmentation of national self-interest as the ultimate source of legality among nation-states. This article …

The Uncitral Model Law On International Commercial Arbitration, Saturnino E. Lucio

University of Miami Inter-American Law Review

No abstract provided.

The Exuberant Pathway To Quixiotic Internationalism: Assessing The Folly Of Mitsubishi, Thomas E. Carbonneau

Faculty Scholarship

The writing on international commercial arbitration often is replete with statements affirming the necessity and advocating the progression of the institution. Indeed, the transnational consensus on commercial arbitration is exceptional - a rare example of viable cohesion in the fragmented arena of international affairs. The unifying spirit of the 1958 New York Arbitration Convention, the uniformity of approach among national courts to the implementation of the Convention, and national legislation supportive of the emerging international consensus on arbitration attest to a willingness to eradicate parochial concerns, to respond to felt needs, and to achieve functional international cooperation.

The United States …

The Iran-United States Claims Tribunal 1981-1983, Lori Fisler Damrosch

Faculty Scholarship

It is in the nature of publishing schedules that this volume of papers presented at a colloquium in April of 1983 was printed in 1984, distributed in 1985, and reviewed in an issue to appear in early 1986. Those who have actively followed the work of the Iran-United States Claims Tribunal are necessarily familiar with a large portion of the contents of this book. Not only were three of the seven chapters previously published elsewhere, but much of the descriptive and some of the analytical material throughout the book has been dealt with in a more timely fashion in the …

Rendering Arbitral Awards With Reasons: The Elaboration Of Common Law Of International Transactions, Thomas E. Carbonneau

Faculty Scholarship

With the growth of international trade, arbitration has emerged as the preferred remedy for resolving private international commercial disputes. In fact, among major Western legal systems such as those of England, the United States and France, statutory and decisional law developments indicate a nearly complete acceptance of international arbitral adjudication. This recognition of arbitral procedure and the enforcement of awards, which are given uniform legal recognition and enforcement by domestic legal systems, either as provisions in international conventions or as principles of national statutory or decisional law. These rules, in effect, represent an international consensus on arbitration and constitute a …

The Need To Utilize International Arbitration, Gerald Aksen

Vanderbilt Journal of Transnational Law

I have been asked to discuss how to convince United States businessmen of the need for utilizing international arbitration. Basically, however, there is a realistic need for this well recognized form of alternative dispute settlement. Primarily, international arbitration affords companies the ability to avoid the uncertainties and complexities of foreign litigation. I found it interesting that Professor Vagts used the word "paradox" in referring to the existence of both the lack of effective treaties on the enforcement of foreign judgments and the host of treaties on the enforcement of foreign arbitral awards. Why is it a paradox? International arbitration was …

Arbitral Adjudication: A Comparative Assessment Of Its Remedial And Substantive Status In Transnational Commerce, Thomas E. Carbonneau

Faculty Scholarship

With the growth of international trade, arbitration has emerged as the preferred remedy for disputes in private international commerce. Its adjudicatory features respond well to the sui generis dispute resolution needs of international commercial contracts. Most significantly, an arbitration agreement acts as an elaborate choice-of-forum clause. It allows the parties to satisfy their need for a predictable and effective dispute resolution process by creating a more realistic and workable framework that supersedes the fundamentally parochial alternative proffered by national legal systems. The party autonomy principle that underlies arbitration gives the contracting parties the power to fashion a remedial process tailored …

Retaliation Or Arbitration – Or Both: The 1978 United States-France Aviation Dispute, Lori Fisler Damrosch

Faculty Scholarship

It began as a very small dispute. Pan American World Airways planned to introduce a service from San Francisco to Paris with a stop in London, using a Boeing 747 aircraft from San Francisco to London and a smaller Boeing 727 aircraft from London to Paris. The change to a smaller plane would have enabled the most efficient and economic use of Pan Am's fleet. In aviation as in railroad terminology, a change along a route to equipment of a different size is called a "change of gauge."

In accordance with French law, Pan Am filed a schedule on February …

The Conduct Of International Arbitration, Sanuek V. Goekjian

University of Miami Inter-American Law Review

No abstract provided.

The Judicial Resolution Of Legal Disputes In The Integration Movements Of The Hemisphere, David J. Padilla

University of Miami Inter-American Law Review

No abstract provided.

War Arbitration And Peace, William Perry Rogers

Michigan Law Review

In examining any question which pertains to the welfare of humanity there are two prominent view points from which to start. One is that of the individual being; the isolated man; the unit of society. The other is that of the mass of mankind; the people as a whole; the corporate organization of states and nations. There are those who believe in a God of nations. They believe He guides their destinies in perils of battle, and in great and dangerous emergencies; but they insist that He has little or nothing to do with the affairs of the individual. Conversely, …