Dispute Resolution and Arbitration Commons^™

Reframing The Dilemma Of Contractually Expanded Judicial Review: Arbitral Appeal Vs. Vacatur , Eric Van Ginkel

Pepperdine Dispute Resolution Law Journal

The Federal Arbitration Act ("FAA") of 1925 was created to ensure enforceability of agreements to arbitrate. The FAA is the centerpiece of the federal arbitration policy as construed by the Supreme Court. Section 10(a) FAA enumerates grounds on which an arbitral award can be set aside. The central issue discussed herein is whether parties can agree by contract to allow one of the parties to initiate review of the arbitral award by a court that would otherwise have jurisdiction over those parties, or whether the court's powers are somehow limited to the grounds for vacatur enumerated in Section 10(a) FAA. …

Report To Law Revision Commission Regarding Recommendations For Changes To California Arbitration Law , Roger Alford

Pepperdine Dispute Resolution Law Journal

In this Article, Professor Alford discusses a report by the Law Revision Commission recommending that certain changes be made to arbitration law in California. It begins by outlining the history of arbitration in California, from its 1961 adoption of the Uniform Arbitration Act, to the 1988 enactment of an international arbitration statute modeled on the UNCITRAL Model Law, to the 1989 enactment of Section 1281.8, which allowed courts to grants provisions remedies to parties involved in arbitration proceedings. It also provides a general overview of the purpose and practice of arbitration law. Then, it provides a chapter-by-chapter analysis the Law …

The Third Party Non-Signatory's Ability To Compel International Commercial Arbitration: Doing Justice Without Destroying Consent , James M. Hosking

Pepperdine Dispute Resolution Law Journal

This article analyzes the legal theories and other mechanisms employed in international commercial arbitration to achieve a workable compromise among the above-cited propositions. In so doing it touches on larger, more complex questions like the position of third parties in contract law, the jurisdictional foundations of arbitration, and the role of choice-of-law issues in determining the validity of the arbitration agreement. However important these broader concerns may be, they should not undermine the importance of the issue in its own right.

International Arbitral Appeals: What Are We So Afraid Of? , Erin E. Gleason

Pepperdine Dispute Resolution Law Journal

This article will explore the advantages of instituting appellate mechanisms in investor-state disputes and international commercial arbitration. Part II begins with a review of the WTO Appellate Body's development and workings, followed by an analysis of other appellate procedures for international trade law arbitration, including the MERCOSUR system's Permanent Court and the Grain and Feed Trade Association's appeals process. Part III examines the current methods for reviewing investor-state arbitration awards under ICSID and NAFTA. Part III goes on to advocate for the creation of an Appeals Facility, separate from current arbitral institutions, which would be empowered to hear appeals in …

Honolulu: Geneva Of The Pacific?, Robert K. Wrede

Pepperdine Dispute Resolution Law Journal

Simply stated, this paper proposes revitalization of a long dormant Hawaiian legislative plan to create a state-of-the-art facility in the Aloha State specializing in avoiding, managing and resolving international commercial conflicts using methods other than traditional litigation. The paper's premise is that a mid-Pacific facility specializing in the use of non-litigation methods for dealing with Pacific Rim transnational commercial disputes would both enhance Pacific Rim commerce, in general, and posture Hawaii as a major player in that valuable and rapidly growing sector of global affairs.

Looking Into A Crystal Ball: Courts' Inevitable Refusal To Enforce Parties' Contracts To Expand Judicial Review Of Non-Domestic Arbitral Awards, Eric Chafetz

Pepperdine Dispute Resolution Law Journal

This article will first discuss the legislative history of the NY Convention in general and the history of its vacatur provisions in particular. Second, it will summarize certain federal court decisions that address the Expansion Issues and reach the Consensus. Third, it will argue that the Expansion Issues were resolved incorrectly, because the courts addressing them do not recognize how the operative/material language in section 207 of Ch. 2 of the FAA and section 9 of Ch. 129 of the FAA has a virtually identical meaning, and therefore should have been construed and applied in the same manner. Fourth, this …

Arbitration Hurdles Facing Foreign Investors In Russia: Analysis Of Present Issues And Implications, Elliot Glusker

Pepperdine Dispute Resolution Law Journal

Russia has come a long way since the collapse of the Soviet Union in 1991, but there are still some structural reforms that need to take place in order to increase investor confidence. In 2007, one hundred billion dollars was invested in Russia from overseas, which represents a record for a developing market economy. However, direct foreign investment in Russia is still low compared to other European nations. Foreign investment is one of Russia's main strategies for improving the long-term health of the economy. There is a lot of promise for future economic growth, but some recent actions by the …

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong

Faculty Publications

This article provides just that sort of guide, outlining the various ways in which U.S. federal courts can become involved in international commercial arbitration and introducing both basic and advanced concepts in a straightforward, practical manner. However, this article provides more than just an overview. Instead, it discusses relevant issues on a motion-by-motion basis, helping readers find immediate answers to their questions while also getting a picture of the field as a whole. Written especially for busy lawyers, this article gives practitioners, arbitrators and new and infrequent participants in international commercial arbitration a concise but comprehensive understanding of the unique …

What Constitutes An "Agreement In Writing" In International Commercial Arbitration? Conflicts Between The New York Convention And The Federal Arbitration Act, S. I. Strong

Faculty Publications

This article investigates whether and to what extent a party must produce an “agreement in writing” when seeking to enforce an international arbitration agreement or award in a U.S. federal court. This issue has recently given rise to both a circuit split and a petition for certiorari to the U.S. Supreme Court, and involves matters of formal validity as well as federal subject matter jurisdiction. The problem arises out of subtle differences in the way an “agreement in writing” is defined in the Federal Arbitration Act (FAA) and the 1958 United Nations Convention on the Recognition and Enforcement of Foreign …

Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong

Faculty Publications

This essay considers the tension between the autonomous theory of international commercial arbitration and the more interactive theory advanced by Gary Born during his keynote address at the recent “Border Skirmishes” symposium at the University of Missouri School of Law. In his presentation, Born considered the relationship between litigation and international commercial arbitration and distinguished between permissible “border crossings” and impermissible “border incursions.” This essay considers how these concepts play out both in routine interactions between courts and tribunals and more in difficult scenarios, such as those involving anti-suit injunctions. The discussion also presents statistics concerning the amount of ancillary …

Arbitration Of Trust Disputes: Two Bodies Of Law Collide, S. I. Strong

Faculty Publications

This article considers the various issues that arise when two separate bodies of law – trust law and arbitration law – collide, using recent developments in the field of international commercial arbitration to address some of the more intransigent problems facing trust arbitration. The article focuses on five areas of concern: the potential for impermissible ouster of the courts, the operability and effectiveness of the arbitration provision, the extent to which the arbitration provision is binding on the party against whom arbitration is asserted, proper representation of parties and arbitrability. In so doing, this article introduces a number of new …

Court Litigation Over Arbitration Agreements: Is It Time For A New Default Rule?, Jack Graves

Scholarly Works

Court litigation over the existence or validity of arbitration agreements is a major threat to the efficacy of international commercial arbitration. While New York Convention Article II(3) requires a court to “refer the parties to arbitration” when faced with a valid and effective arbitration agreement, it fails to provide any guidance with respect to the process for answering that question, thus leaving the issue to national law. A recalcitrant respondent may, therefore, have a variety of options for court challenges—based on a disparate array of national laws—in seeking to delay or at least complicate any claims subject to arbitration. This …

Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong

Faculty Articles

National courts are becoming increas­ingly involved with international commercial arbitration. Although this observa­tion may be disheartening to those who support the autonomy of the international arbitral regime, the continued interaction between courts and tribunals is less troubling to those who view international commercial arbitration as a "hybrid" method of dispute resolution, with numerous opportunities for permissible "border crossings. "

That is not to say that courts can or should become involved with every as­pect of arbitration. Instead, impermissible "border incursions" diminish the effec­tiveness of international commercial arbitration and could erode public or private support for the international arbitral regime. Therefore, …

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong

Faculty Articles

Thus, this Article aims to provide newcomers to and infrequent users of international commercial arbitration with a brief introduction to the relationship between international arbitral proceedings and U.S. federal courts. Limitations of space mean that a great deal has necessarily been left out of this discussion. For example, this Article does not describe processes internal to the arbitration, in­stead focusing solely on the interaction between tribunal, parties and court. Fur­thermore, the text often skips over basic propositions of U.S. law that are well­-established in the domestic realm so as to concentrate more heavily on elements that are unique to international …

Court Litigation Over Arbitration Agreements: Is It Time For A New Default Rule?, Jack Graves

Scholarly Works

Court litigation over the existence or validity of arbitration agreements is a major threat to the efficacy of international commercial arbitration. While New York Convention Article II(3) requires a court to “refer the parties to arbitration” when faced with a valid and effective arbitration agreement, it fails to provide any guidance with respect to the process for answering that question, thus leaving the issue to national law. A recalcitrant respondent may, therefore, have a variety of options for court challenges—based on a disparate array of national laws—in seeking to delay or at least complicate any claims subject to arbitration. This …

The "Gateway" Problem In International Commercial Arbitration, George A. Bermann

Faculty Scholarship

Participants in international commercial arbitration have long recognized the need to maintain arbitration as an effective and therefore attractive alternative to litigation, while still ensuring that its use is predicated on the consent of the parties and that the resulting awards command respect. A priori, at least, all participants – parties, counsel, arbitrators, arbitral institutions – have an interest in ensuring that arbitration delivers the various advantages associated with it, notably speed, economy, informality, technical expertise, and avoidance of national fora, while producing awards that withstand judicial challenge and otherwise enjoy legitimacy.

National courts play a potentially important policing role …

'Domesticating' The New York Convention: The Impact Of The Federal Arbitration Act, George A. Bermann

Faculty Scholarship

Much as one may try to universalize and even ‘de-nationalize’ international commercial arbitration – whether through Conventions, uniform or model laws or soft law – the phenomenon remains profoundly affected by national law and policy. That is indeed very much one of the leitmotifs of this book.

The incongruities – big and small – between domestic and international arbitration regimes typically present themselves on a purely ad hoc basis; that is to say, in specific and often isolated contexts, as when a particular case in a national court produces a result that looks anomalous from the point of view of …

"Competence-Competence And Separability-American Style", Published As Chapter 8 In International Arbitration And International Commercial Law: Synergy, Convergence And Evolution, Jack M. Graves, Yelena Davydan

Scholarly Works

No abstract provided.

Cost Awards In International Commercial Arbitration: Proposed Guidelines For Promoting Time And Cost Efficiency, Robert H. Smit, Tyler B. Robinson

Faculty Scholarship

This article offers specific guidelines for awarding costs in international commercial arbitration where the source of the arbitral tribunal’s authority to allocate costs – be it the parties’ arbitration agreement, applicable institutional arbitration rules, or otherwise – vests the tribunal, as is typically the case, with discretion. The guidelines proposed in this article are designed to encourage party choices that enhance international arbitration’s goals of time and cost effectiveness. Predictable (yet flexible) guidelines that serve international arbitration’s unique qualities should in turn serve to maximize the appeal of international commercial arbitration over its alternatives. It is anticipated that these guidelines …

Research In International Commercial Arbitration: Special Skills, Special Sources, S. I. Strong

Faculty Publications

Experts agree that international commercial arbitration relies far more heavily on written advocacy than litigation does, yet very few practitioners and arbitrators have ever received any specialized training in how to research and present written arguments in this unique area of law. Newcomers to the field are particularly disadvantaged, since the legal authorities used in international commercial arbitration are unique and novices often do not know how to find certain materials, if they are even aware that these items exist. This article helps deepen the understanding of the practice of international commercial arbitration by describing how experienced international advocates and …

The Need For A Transnational Appellate Arbitral Review Body, Priya Sampath

LLM Theses and Essays

This thesis analyzes the necessity for the establishment of a transnational body of arbitral appeal. The paper also elaborates on how the establishment such a body will serve as a suitable replacement for judicial review and be an effective source of appeal in general. Also prescribed are suggestions based on which the appellate body may be conceived.

Adversarial Or Inquisitorial: Which Approach Is Closer To Arbitration?, Ahmed Galal Zaki

Archived Theses and Dissertations

Adversarial techniques such as pre-trial discovery of documents, cross-examination, and lengthy oral pleadings are now in vogue in the conduct of international commercial arbitration proceedings. This paper responds to this trend by analyzing both the adversarial and the inquisitorial systems in an attempt to demonstrate which is more fulfilling to the objectives of international commercial arbitration. These objectives are party autonomy, neutrality, efficiency, flexibility, and confidentiality. In the finale, the paper provides that although the adversarial system is in line with the autonomy rights of those who opt for arbitration, its inquisitorial counterpart is more neutral, efficient, flexible, and confidential. …

How To Deal With Multi-Party Nominations Of Arbitrators In International Commercial Arbitration - A Comparative Study Of Appointment Procedures With Emphasis On U.S.-European Commerce Between Private Entities, Marie-Beatrix Tupy

LLM Theses and Essays

The nomination procedure for the Arbitral Tribunal in commercial arbitration is one of the crucial points in the arbitral procedure. Parties have to have in mind the provisions of the New York Convention regarding the setting aside of an award in case of a failure during the nomination procedure of the tribunal. Besides from the famous Dutco case on multi-party arbitrations and their nomination procedures have received highest interest within the international arbitral world. As the thesis will comparatively show, all major arbitral institutions have updated their Rules, countries have even rendered new legislation with respect to the nomination procedure …

The Shari'a Factor In International Commercial Arbitration, Faisal M. Kutty

ExpressO

The world has witnessed a phenomenal growth in commercial disputes transcending national borders due to our increasingly interrelated and globalized world economy. In addition to issues in interpretation of commercial agreements and practices, differences in custom, language, culture and religion will continue to fuel conflicts and disagreements between commercial players. Over the last few decades there have been growing commercial interaction between Western companies and their Middle Eastern counterparts. Given this interaction and the great geo-political and economic importance of this region, it is imperative that Western lawyers and dispute resolution professionals have a reasonable grasp of the general principles …

Everybody Loves Arbitration: The Second Circuit Sets Pro-Arbitration Precedent In International Commercial Arbitration Cases, Jasen Matyas

Journal of Dispute Resolution

Phoenix Aktiengesellschaft v. Ecoplas, Inc. presented the Second Circuit with an unresolved question of preemption in international arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention). The court specifically addressed the issue of whether the consent-to-confirmation requirement of section 9 of the Federal Arbitration Act (FAA) conflicted with section 207 of the FAA which does not require such consent. Section 208 incorporates Chapter 1 provisions to the extent that such provisions are not in conflict with Chapter 2. Phoenix held that the two provisions were in conflict, and consent-to-confirmation is not incorporated into Chapter 2. …