Dispute Resolution and Arbitration Commons^™

Interlocutory Review By Agreement Of The Parties: A Preliminary Analysis, James Pfander, Dave Pekarek-Krohn

Faculty Working Papers

Although the nineteenth century's final judgment rule no longer represents an absolute barrier to interlocutory appellate review, scholars disagree about what should take its place. Some favor a regime of discretionary interlocutory review, with power conferred on appellate courts to select issues that warrant intervention. Others reject discretionary review as a waste of appellate resources and call upon the rule makers to identify specific categories of non-final orders that always warrant review. While the Supreme Court's collateral order doctrine bears some similarity to this process of categorization, the Court may have called a halt to the judicial recognition of new …

Collateral Review Of Remand Orders: Reasserting The Supervisory Role Of The Supreme Court, James Pfander

Faculty Working Papers

Although some might consider the appellate review of remand orders as something of a jurisdictional backwater, recent developments suggest that the rules need attention. The Supreme Court has decided no fewer than four cases in the past few years and has failed to develop a persuasive framework. Indeed, one member of the Court, Justice Breyer, has invited "experts" to solve the problem.

In this essay, I suggest that the solution lies in the Court's own hands. Rather than proposing legislative or rulemaking solutions, I call on the Court to re-invigorate its supervisory powers and conduct direct review of district court …

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

American University International Law Review

No abstract provided.

From The Chair, Lela P. Love

Articles

No abstract provided.

Non-Signatories And The New York Convention, William W. Park

Faculty Scholarship

In the context of arbitrations subject to the New York Convention, the term ,non-signatory' might evoke several lines of inquiry. Must commitments to arbitrate be signed? What legal framework guides decision-making about who agreed to arbitrate? How should courts monitor an arbitrator's assertion of jurisdiction over someone who never signed an arbitration agreement?

The second of these matters - rules about who agreed to arbitrate - will retain our attention in this paper. While few commentators deny that arbitration rests on consent,¹ less unanimity exists about what exactly constitutes such consent when one side contests that it ever waived …

The Minimal Role Of Federalism And State Law In Arbitration, Edward Brunet

Nevada Law Journal

No abstract provided.

Re Canada Post Corp And Cupw (Paris), Innis Christie

Innis Christie Collection

This is a supplementary award. The parties could not agree on the interpretation of a consent award issued the day before this grievance. The issue being the length of time the Grievor was to remain free of illegal drug use. The Union said the 24 months mentioned in the award; the Employer said indefinitely. The counsel for the Employer also suggested that the Arbitrator did not have jurisdiction to decide the matter.

Re Canada Post Corp And Cupw (Paris), Innis Christie

Innis Christie Collection

The Grievor had previously been reinstated to her position, with certain conditions. This grievance was submitted by the Union after the Grievor was again discharged for a positive drug test. The parties agreed to a consent award.

This is a consent award. A "last chance" reinstatement is ordered for the Grievor with numerous conditions, which include a treatment program. Jurisdiction is retained regarding any further alleged breach, but not to modify penalty.

Creating A Roadmap For Achieving Intergenerational Environmental Justice, Clifford Rechtschaffen

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Clifford Rechtschaffen, Professor of Law and Director, JD Environmental Law Program; Co-Director, Environmental Law and Justice Clinic, Golden Gate University School of Law

5 pages.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The Role Of International Arbitrators, Susan Franck

Scholarly Articles in Law Reviews & Journals

With the advent of the global economy, arbitration has become the preferred mechanism for resolving international disputes. Today international arbitrators resolve billions of dollars worth of disputes.' Arbitration has taken on such prominence in the international context that commentators express "little doubt that arbitration is now the first-choice method of binding dispute resolution" and has "largely taken over litigation."'

Mediating In The Shadow Of Australian Law: Structural Influences On Adr, Nadja Alexander

Research Collection Yong Pung How School Of Law

Mediation has grown rapidly in many Anglophone jurisdictions such as USA, Australia, Canada, New Zealand and England. The current state of mediation practice in many of these jurisdictions can be traced back to the establishment of community justice centres in the 1970s and 1980s. Mediation is practised in the private sector as well as in a wide range of court-referred programs. In many common law jurisdictions mediation is no longer a form of alternative dispute resolution, it has become primary dispute resolution.

Natural Forum And The Elusive Significance Of Jurisdiction Agreements, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

The Singapore court's power to stay its proceedings by reason of its not being the appropriate forum the proceedings ought not to be continued is underpinned by the common law principle enunciated in The Spiliada that generally a trial should be heard in its natural forum. The Rainbow Joy adds significantly to Singapore law on forum non conveniens on two important points. First, it establishes that it is not necessary to show that the alternative forum abroad is constituted as a court of law. Secondly, the case establishes that whether there is a defense claim on the merits is an …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Finding The Contract In Contracts For Law, Forum, And Arbitration, William John Woodward

ExpressO

Contract provisions specifying the law or forum (either judicial or arbitration) have begun appearing in litigated cases, as businesses have pressed many courts for their enforcement against consumers. In at least some of the cases, enforcement of a choice of law provision results in the displacement of the consumer’s home state protection by the lesser consumer protection of the State of the form drafter’s choosing. This phenomenon raises serious problems of federalism and local control of consumer protection. But while considerable scholarly attention has been lavished on so-called “mandatory arbitration” in this context, much less has attempted to improve our …

From International Law To Law And Globalization, Paul Schiff Berman

ExpressO

International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

Towards A Cosmopolitan Vision Of Conflict Of Laws: Redefining Governmental Interests In A Global Era, Paul Schiff Berman

ExpressO

It has now been ten years since the idea of global online communication first entered the popular consciousness. And while the internet has undoubtedly opened up new worlds of interaction and cooperation across borders, this increased transnational activity has also at times inspired parochialism, at least among the legislatures and courts of nation-states around the globe. Thus, we have seen a slew of national laws and court decisions purporting to regulate a wide variety of online activities, from gambling to chat rooms to auction sites, and seeking to enforce territorially based rules regarding trademarks, contractual relations, privacy norms, “indecent” content, …

Re Canada Post Corp And Cupw, Innis Christie

Innis Christie Collection

A previous Grievance which alleged improper staffing was successful and resulted in an Award which required that the affected employees receive an offer for the positions they would have had if filled properly. The Arbitrator retained jurisdiction regarding the implementation of the Award. A subsequent hearing regarding the Grievor resulted in an order to offer her the position she had been denied. The Grievor accepted the position, but with her own conditions. This hearing is to consider if she accepted the position or, by adding conditions, rejected the offer.

Rwandan Gacaca: An Experiment In Transitional Justice, Maya Goldstein Bolocan

Journal of Dispute Resolution

This paper argues that shifting the emphasis from the retributive nature of Gacaca to its restorative potential may, in the long term, offer better perspectives of peace and reconciliation to a deeply wounded society. It also argues that, where Gacaca retains its retributive element, it should do so while trying to respect the human rights of those brought before it. Part II of this paper briefly discusses the dominant model of transitional justice, namely the prosecutorial approach of criminal trials, and its effectiveness vis-A-vis alternatives that emphasize the search for truth and reconciliation instead of retribution. Part III provides a …

Re Atlantic Pilotage Authority And Canadian Merchant Service Guild, Innis Christie

Innis Christie Collection

Employee Grievances alleging breach of Article 27.05 of the Collective Agreement between the parties dated October 16, 2000, which the parties agreed is the Collective Agreement that governs this matter, in that the Union alleges that each of the Grievors was given notice of recall in accordance with Article 27.05, each was available for the ten-hour period as required and each submitted a request to be paid in accordance with Article 27.05, which was refused. The Union seeks an order that the Employer pay each Grievor at the rate of pay specified in Article 27.05.

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic Nelson Smalkin, Frederic Nelson Chancellor Smalkin

ExpressO

This article takes a fresh look at the increasingly discussed topic of the scarcity of civil cases reaching trial in the Article III system. The number of cases tried declined by more than one-fourth in the decade from 1989-1999, and the decline continued at about the same rate to the end of the latest year for which statistics are available, 2002, while ADR (particularly arbitrations) skyrocketed.

The authors examine the history of competing English courts (particularly Common Pleas and King's Bench) for signs that, in fact, market competition can arise among dispute-resolving bodies. They also apply economic analysis to the …

Re Saint John (City Of) And Saint John Fire Fighters' Association, Iaff Local 771 (Davidson), Innis Christie, G Lawson, A Levine

Innis Christie Collection

Union grievance on behalf of the Grievor alleging that he was hired and subsequently fired without due process, contrary to the 2001-2003 Collective Agreement between the parties, and seeking full redress. At the outset of the hearing in this matter the parties agreed that this Board of Arbitration is properly constituted and, sub­ject to the City's preliminary objection, properly seized of this matter. The City made a preliminary objection to the jurisdiction of this Board of Arbitration to hear this matter based on the allegation that the Grievor was never an employee of the City; i.e., that he was never …

Re Caw-Canada, Local 2216 And Aca Co-Operative Ltd, Innis Christie

Innis Christie Collection

The Union claimed that the Grievor was unjustly suspended for four days, then unjustly discharged.

This is a consent award. The parties agree that the Grievor is to be reinstated, subject to certain conditions, and granted retroactive pay. The Arbitrator retains jurisdiction to deal with any grievances in respect of discipline against the Grievor for a period of one year from the date of the award.

Re Canada Post Corp And Cupw (105-00-00003), Innis Christie

Innis Christie Collection

The Union alleges that the Employer violated the Agreement by failing to provide the Union with the results of the five day count taken September 22-29, 1999. The Union 's original request on remedy was an order that the results be provided. However, since the hearing took place more than two years after the count, the Union now asks that the Employer be ordered to conduct another five day count within one month of the award. The Union asks that the Arbitrator remain seized of the matter should the parties be unable to agree on monetary remedy.

Re Pepsi Bottling Group And Caw-Canada, Loc 1015 (Williams), Innis Christie

Innis Christie Collection

Employee grievance dated September 27, 2000, alleging breach of Article 16 and all other relevant Articles of the Collective Agreement between the Employer and the predecessor Union, the United Steelworkers of America, Local 1015, signed April 23, 1999, which the parties agreed is the Collective Agreement for purposes of this matter, in that the Grievor's claim for short-term disability payments was disallowed by Maritime Life Assurance Company, the administrator/insurer of the Employer's "Flex" (or "Flexible") Benefits Plan.

Re Canada Post Corp And Cupw (106-00-00003), Innis Christie

Innis Christie Collection

This is an award respecting preliminary objections raised by the Employer on matters of timeliness and an assertion that the Arbitrator had already dealt with this matter in two other decisions.

The grievance fails. The Employer's right to object on the basis of timeliness is waived because the Employer dealt with the grievance on its merits, and did not otherwise indicate an objection on timeliness until the eve of the hearing. The Employer's objection based on previous judgement is rejected because the matter in question is one of retained jurisdiction.

What's Law Got To Do With It: Mapping Modern Mediation Movements In Civil And Common Law Jurisdictions, Nadja Alexander

Research Collection Yong Pung How School Of Law

Context defines mediation and has a direct impact on how it is practised. National legal contexts reveal historically embedded systemic differences that can provide insights into the reasons behind the rapid expansion of mediation in common law jurisdictions, and the comparatively hesitant development of mediation in civil law jurisdictions. In this article I consider the legal and political forces behind the modern mediation movements in Australia and Germany: two countries that represent the common law and the civil law traditions respectively.

Re Coca-Cola Bottling Ltd And Retail, Wholesale And Department Store Union, Local 1065 (Colpitts), Innis Christie

Innis Christie Collection

Employee grievance alleging breach of the Collective Agreement between the parties dated July 3, 1997, which the parties agreed is the Collective Agreement that governs this matter, and in particular of Article 9:03(d), in that the Employer denied the Grievor Long-Term Disability benefits. The Grievance requested "full redress".

Forum Shopping For Arbitration Decisions: Federal Courts' Use Of Antisuit Injunctions Against State Courts, Jean R. Sternlight

Scholarly Works

Arbitration clauses, which are supposed to do away with litigation, have ironically spawned many complicated and expensive court fights. Some of the most complex cases involve both forum shopping by the parties and jurisdictional turf battles between federal and state courts. Federal courts have, on quite a few occasions, actually gone so far as to enjoin a state court from continuing to consider a pending case because the federal court concluded that the matter ought to be arbitrated. The Supreme Court, however, has never ruled on whether or when such "arbitral antisuit injunctions" are permissible. In Moses H. Cone Memorial …