Dispute Resolution and Arbitration Commons^™

Seeing Race As We Are: Avoiding, Arguing, Aspiring, Michael A. Cowan

New England Journal of Public Policy

Racial conflict in the United States pushes people to positions of argument or avoidance, more or less intensely and for varying lengths of time, depending on external events like the murder of George Floyd. Neither stance produces the conversations required to seek common ground and compromise around racial issues. Argument alone deepens divisions and avoidance leaves them to metastasize in the social body. In an attempt to go beneath these two positions, this article first explains the role and form of interpretation in all conflict and dispute resolution and how it is shaped. Then it examines the concepts and strategies …

The Use Of Arbitration Clauses By Social Media Websites: A Critique, Kavya Jha, Ananya Singh

Pepperdine Dispute Resolution Law Journal

The arbitration clauses contained in the Terms of Services (ToS) of most social media websites mandate arbitration and the waiver of class arbitration.1 In light of this reality, this article seeks to analyze the legal position with respect to mandatory arbitration and class arbitration waiver in the United States, India, and European Union (EU). It compares and juxtaposes the respective positions in these three jurisdictions to find that whereas the United States has been pro-arbitration to the extent of being detrimental to consumer interest, India has adopted an overly protectionist approach, while the EU has adopted an effective model to …

Legal Lying?, Robert Angyal, Nicholas Saady

Pepperdine Dispute Resolution Law Journal

Mediation has become very common in the USA and Australia—at least partly because of court-mandated mediation initiatives. Lawyers often represent clients at mediations, so the increased use of mediation makes it important to understand how both jurisdictions regulate lawyers’ advocacy on behalf of their clients during mediation. This article comparatively analyzes how professional standards regulate the truthfulness of lawyers’ advocacy during mediation in Australia and the United States. It focuses on uniform regulation in those jurisdictions. Part One will comparatively analyze the relevant regulations in Australia and the United States, and the types of obligations contained in those regulations—for example, …

Covid-19 Pandemic, The World Health Organization, And Global Health Policy, Cosmas Emeziem

Pace International Law Review

The emergence and quick spread of the COVID-19 pandemic has shifted the focus and dynamics of the debates about global health, international law, and policy. This shift has overshadowed many of the other controversies in the international sphere. It has also highlighted the tensions that often exist in international affairs—especially in understanding the place and purpose of international institutions, vis-à-vis states, in the general schema of public international law. Central to the international response to the current pandemic is the World Health Organization (WHO)—a treaty-based organization charged with the overarching mandate of ensuring “the highest possible level of health” for …

International Commercial Courts In The United States And Australia: Possible, Probable, Preferable?, S. I. Strong

Faculty Articles

As worldwide interest in international commercial courts grows, questions arise as to whether individual nations can or should seek to compete in the “litigation market” by developing their own cross-border business courts. This essay compares the prospects of the United States and Australia in this regard, focusing on whether it is possible (Section II), probable (Section III), and preferable (Section IV) for one or both of these two federalized, common law nations to develop an international commercial court as part of their national judicial systems. The inquiry is particularly intriguing given that one country (the United States) has had a …

Interpretation Of Pathological Arbitration Agreements: Non-Existing And Inaccessible Elements, Morten Frank

Pepperdine Dispute Resolution Law Journal

In the following, I will initially present the terminological and analytical framework for handling pathological arbitration agreements (Part II). Against this background, I will analyze case law from USA (Part III), Singapore and Hong Kong (Part IV), and England (Part V) in order to establish under which circumstances Solution 1, Solution 2 and Solution 3 apply in respect of arbitration agreements containing non-existing and inaccessible elements. Finally, Part VI considers an adjoining—although fundamentally different—interpretation situation across jurisdictions. Part VII provides a summary as well as concluding remarks on the drafting of arbitration agreements.

Process & Industrial Developments Limited V. Nigeria: Exception Under The Fsia When Award Has Been Set Aside By A Court Of The Country “Under The Law Of Which” The Award Was Made, Ndifreke Uwem

University of Miami International and Comparative Law Review

In March 2018, Process & Industrial Developments Limited (P&ID) filed a petition at the United States District Court for the District of Columbia to confirm an arbitral award against the Federal Republic of Nigeria. The proceedings were conducted in three phases – jurisdictional, liability, and damages. The arbitration provision in the underlying contract hardly represented a model of clarity. It provided for the application of the Nigerian arbitration act to any dispute between the parties. On the other hand, it specified London as the “venue” of the proceedings. This posed a problem as to whether Nigeria was the juridical seat …

The Cold War And The Discipline Of Negotiation, Bazil Cunningham

Global Tides

The Cold War period is perhaps one of the most tumultuous periods in modern history apart from the calamity of World War I and World War II. The juxtaposition of two world superpowers and the proliferation of nuclear arms resulted in extreme tension, uncertainty, and fear during the Cold War era. Although nuclear warfare was averted, experts all unanimously agree that the world barely escaped unscathed. This paper will provide detail surrounding the history of the Cold World Era, an in-depth discussion regarding the application of Negotiation theory to this conflict, and any conclusions that can be drawn. The synthesis …

Venezuela Undermines Gold Miner Crystallex's Attempts To Recover On Its Icsid Award, Sam Wesson

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Religious Courts In Secular Jurisdictions: How Jewish And Islamic Courts Adapt To Societal And Legal Norms, Rabea Benhalim

Publications

At first glance, religious courts, especially Sharia courts, seem incompatible with secular, democratic societies. Nevertheless, Jewish and Islamic courts operate in countries like the United States, England, and Israel. Scholarship on these religious courts has primarily focused on whether such religious legal pluralism promotes the value of religious freedom, and if so, whether these secular legal systems should accommodate the continued existence of these courts. This article shifts the inquiry to determine whether religious courts in these environments accommodate litigants’ popular opinions and the secular, procedural, and substantive justice norms of the country in which they are located. This article …

The Case For American Muslim Arbitration, Rabea Benhalim

Publications

This Article advocates for the creation of Muslim arbitral tribunals in the United States. These tribunals would better meet the needs of American Muslims, who currently bring their religious disputes to informal forums that lack transparency. Particularly problematic, these existing forums often apply legal precedent developed in majority-Muslim nations, without taking into consideration the changed circumstances of Muslim living as minorities in the United States. These interpretations of Islamic law can have especially negative impacts on women. American Muslim arbitration tribunals offer the potential to correct these inadequacies. Furthermore, a new arbitral system could better meet the needs of sophisticated …

Retour Sur L’Affaire De L’Alabama: De L’Utilité Et De L’Histoire Pour L'Arbitrage International, William W. Park, Bruno De Fumichon

Faculty Scholarship

For any aficionado of international law and international arbitration, the 1872 Alabama case represents a rich historical landmark, as promising a mine as the wreck of the Confederate Ship Alabama itself, sunk off Cherbourg, in 1864, by the United States Ship Kearsarge. This arbitration represents a turning point in relations between the United States and Great Britain, from repeated conflict to a “Special Relationship” that has grown stronger during the past century and a half. The case also marked the revival of international arbitration, after centuries of uncertainty. Not least, the case introduced long-lasting procedural innovations: the neutral collegial tribunal, …

Commercial Arbitration: Germany And The United States, Jill I. Gross, Christian Duve

Elisabeth Haub School of Law Faculty Publications

Arbitration has deep roots in the legal cultures of the United States and Germany--and is still an important option for resolving disputes in both countries today. As far back as Colonial times, US merchants used arbitration to settle industry disputes, and in the early 19th century, American stockbrokers resolved intra-industry disputes through arbitration at the New York Stock Exchange. In Germany, a country with a civil law rather than a common law tradition, commercial arbitration has been practiced for centuries: the first draft of the German Code of Civil Procedure from 1877 included a section establishing the legal foundations of …

Enforcement Of Icsid Convention Arbitral Awards In U.S. Courts, Abby Cohen Smutny, Anne D. Smith, Mccoy Pitt

Pepperdine Law Review

No abstract provided.

Book Review: El Conflicto Honduras - El Salvador Y El Orden Juridico Internacional. James Rowles. Editorial Universitario Centroamericana (Educa). Costa Rica, 1980., José R. Pagés

Georgia Journal of International & Comparative Law

No abstract provided.

Maritime Boundary Dispute Settlement: The Nonemergence Of Guiding Principles, Marvin A. Fentress

Georgia Journal of International & Comparative Law

No abstract provided.

Settlement Of Disputes In Gatt Under The Subsidies Code: Two Panel Reports On E.E.C. Export Subsidies, Massimo Coccia

Georgia Journal of International & Comparative Law

No abstract provided.

Remembering The Bay Of Pigs: Using Letters Of Credit To Facilitate The Resolution Of International Disputes, Gerald T. Mclaughlin

Georgia Journal of International & Comparative Law

No abstract provided.

Still Dissatisfied After All These Years: Intellectual Property, Post-Wto China, And The Avoidable Cycle Of Futility, Peter K. Yu

Georgia Journal of International & Comparative Law

No abstract provided.

Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Recent Developments In Third-Party Funding, Victoria Sahani

Faculty Scholarship

This article addresses recent developments in third-party funding that occurred during late 2012 and early 2013 in the three leading jurisdictions: Australia, the United Kingdom and the United States. The most important developments are the following. On 22 April 2013, the Australian Securities and Investment Commission (ASIC) issued regulatory guidelines clarifying the status of funders with respect to ASIC’s regulations and detailing how funders should manage conflicts of interest and handle certain provisions of their funding arrangements. In the United Kingdom, the Jackson Reforms took effect on 1 April 2013, bringing sweeping changes to the allowable fee agreements, discovery rules …

Prospects For Satisfactory Dispute Resolution Of Private Commercial Disputes Under The North American Free Trade Agreement, Jonathan I. Miller

Pepperdine Law Review

No abstract provided.

To Certify, Or Not To Certify: A Comparison Of Australia And The U.S. In Achieving National Mediator Certification, Mandy Zhang

Pepperdine Dispute Resolution Law Journal

This article aims to trace the progress of establishing mediation accreditation in Australia and the United States. Part II briefly describes how each country came to the decision of exploring the necessity of national mediator certification, and also illustrates the proposed designs for the Australian certification program and U.S. certification program recommended by the ACR. Part III suggests possible reasons for why the U.S. has failed to implement the mediator certification program proposed by the ACR while Australia is moving forward to establish their system. Part IV concludes with why the U.S. should continue to push for national mediator accreditation …

Fact Sheet: Study Of Long-Term Augmentation Options For The Water Supply Of The Colorado System, Black & Veatch, Ch2m Hill

Navigating the Future of the Colorado River (Martz Summer Conference, June 8-10)

1 page.

"March 2008"

Material submitted by Les Lampe, Colorado River Water Consultants, for "Augmentation Options" program, Session 3: Mapping a New Course, Panel F: Some Policy Options and Solutions.

Colorado River Water Consultants is a project-specific partnership of engineering firms Black & Veatch and CH2MHill.

Slides: Law Of Colorado River: Where We Are, Where We Are Going, Steven M. Fitten

Navigating the Future of the Colorado River (Martz Summer Conference, June 8-10)

Presenter: Steven M. Fitten, Chief Counsel, International Boundary and Water Commission (IBWC)

14 slides

Defining Civil Disputes: Lessons From Two Jurisdictions, Elizabeth G. Thornburg, Camille Cameron

Faculty Journal Articles and Book Chapters

Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …

Defining Civil Disputes: Lessons From Two Jurisdictions, Camille Cameron, Elizabeth Thornburg

Articles, Book Chapters, & Popular Press

Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …

Agenda: Us-Mexico Negotiations On Improved Colorado River Management: An Update, University Of Colorado Boulder. Natural Resources Law Center, Western Water Policy Program, Colorado Water Conservation Board

US-Mexico Negotiations on Improved Colorado River Management: An Update (February 19)

The United States and Mexico are currently negotiating an international accord on a variety of Colorado River water matters, including the prospects for new water projects, conservation efforts, and operational improvements. Participants are invited to hear an update on these efforts from individuals directly involved in the negotiations, including Mario López Pérez, Engineering and Technical Standards Manager in the National Water Commission of México, who is responsible for binational water issues with the USA, Guatemala and Belize.

Discovery From Non-Parties (Third-Party Discovery) In International Arbitration, Charles O. Verrill Jr.

Faculty Scholarship

International arbitration rules and many arbitration laws usually provide procedures that permit tribunals to order parties to disclose documents and other materials to the other parties.1 More complex are the rules that determine opportunities to obtain discovery from persons that are not party to the arbitration (third-party discovery). This article will review third-party discovery under the Federal Arbitration Act (FAA) and the provisions of the US Code s.1782 that authorise US courts to act in aid of actions before foreign tribunals. Section 1782 has unique interest at this time because it figured prominently in the EU antitrust investigation of Intel …

Administrative Law And Culture For The U.S. Collaborative Governance State, David H. Rosenbloomn, Mei Jen Hung

Journal of Dispute Resolution

During the 1980s and 1990s, collaborative governance emerged as a potentially new global paradigm for public administration. It comes in many forms. However, its essence is governmental reliance on nongovernmental entities for the delivery of public services and constraints. Simply put, collaborative governance calls on government to focus on "steering" while relying on third parties to do the "rowing." In the United States, collaborative government is not new in kind-the federal government relied on contractors to convey the mail from the early days of the republic. Rather it is new in scope, accounting for billions of dollars and millions of …