Dispute Resolution and Arbitration Commons^™

Designing Responsive Legal Systems: A Comparative Study, Nofit Amir, Michal Alberstein

Pepperdine Dispute Resolution Law Journal

The drive for efficiency has caused many legal systems to redesign themselves, creating multiple paths for dispute resolution and incorporating settlement-promoting tools into the judicial role. However, as this study shows, legal systems have taken divergent approaches as they redesign themselves to accommodate settlement practices, leading to widely disparate results. This study probes the paths taken by three countries’ legal systems—England and Wales (common law), Israel (mixed), and Italy (continental law)—drawing on court docket analyses, courtroom observations, and interviews with judges in the three legal systems. It uncovers central points of divergence—emphasized stage of dispute resolution, separation vs. combination of …

From Healthcare To Hiring: Impacts Of Social And Public Policy On Disabled Veterans In The United States, Benjamin Michael Stoflet

Student Scholarship

The United States Government is struggling to fulfill commitments it has made to service members suffering from disabilities incurred during honorable service to the country. The Department of Veterans Affairs (VA) disability compensation structure, job training programs, and methods of alternative dispute resolution is a patchwork resulting from decades of legislation creating a system where veterans often become locked in a complicated and often combative process to obtain benefits they have earned. Employers, advocacy groups, academics, and federal officials agree that there are systematic issues within the VA negatively impacting disabled veterans. These include a lack of patient-centered care, divergent …

The Road Goes Ever On: Diplomatic Service In Relation To Award Enforcement Proceedings Against Foreign States, Darius Chan, Louis Lau

Research Collection Yong Pung How School Of Law

The seemingly straightforward question of what and how a foreign state should be served when an award creditor seeks to enforce an arbitral award against the state has provoked differing views. On one hand, comity requires foreign states to be given notice of proceedings by a formal and predictable method through diplomatic processes. On the other hand, the potential for abuse by states, and practical difficulties of effecting diplomatic service, may exist in certain circumstances. This issue is of practical importance given the rise in cross-border investment with the Belt & Road Initiative and international investment instruments. This case note …

Empowering The Courts To Order The Use Of Amicable Dispute Resolution: The Singapore Rules Of Court 2021, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

The civil justice regime in Singapore entered a new phase of radical reforms with effect from 1 April 2022. The reforms have substantially expanded the role of amicable dispute resolution (ADR). Parties have a duty to consider ADR prior to and during civil proceedings. More significantly, the courts have been empowered to order parties to attempt ADR, taking into account the ideals of the Rules of Court and all relevant circumstances. This note analyses the key reforms relating to the use of ADR with reference to comparable English developments. It discusses the broad yet ambivalent scope of ADR that could …

Inconsistency Crisis And Reformative Proposals Of Investor-State Arbitration System- Umbrella Clauses Considered, Abdallah Elsayed

Theses and Dissertations

The main purpose of investment treaties is to provide guarantees and protections for the investors in order to maintain the flow of foreign direct investment. As a consequence, when disputed, an adjudicator confronts a dilemma of figuring out the actual intention that the parties consented to. As for umbrella clauses are concerned, an interpreter falls into a loop to attain whether the parties consented to prioritize investor’s interest and elevate any contractual breach to the level of a treaty breach, or to consider the state’s regulatory power. The root could be traced to the interpretation process itself. Human conduct differs …

Table Of Contents And Masthead, Katelyn Leeveriphan

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Can Islamic Law Principles Regarding Settlement Of Criminal Disputes Solve The Problem Of The U.S. Mass Incarceration?, Amin R. Yacoub, Becky Briggs

Pepperdine Dispute Resolution Law Journal

The mass incarceration crisis in the United States (US) remains a vexing issue to this day. Although the US incarcerated population has decreased by twenty-five percent amid the COVID-19 pandemic, the US remains a leading country in the number of incarcerated people per capita. Focusing on Islamic law principles governing settlement in criminal cases, the rehabilitative approach of the Icelandic criminal justice model, and the powerful role of prosecutors in serving justice, this research argues that integrating settlement and mediation into the prosecutorial proceedings will significantly reduce mass incarceration in the US.

A Reaction To Systemic Inaction: Breaking The Congressional Logjam Where It Counts, Nicholas W. Archibald

Pepperdine Dispute Resolution Law Journal

William Marshall proposed that congressional inaction threatening “the ability of the government to function” should be “subject to constitutional scrutiny.” This article is a response to Marshall’s proposal and offers a potential solution based on alternative dispute resolution rather than the courts. When faced with seemingly insurmountable differences, Congress must look to alternative dispute resolution to reach a breakthrough on critical issues. This paper proposes the creation of a Mediation Office to assist Congress in coming to these breakthroughs. This mechanism could also possibly intervene when the issue is between Congress and the President. Part II of this article will …

Indiana In The Midst Of #Metoo: The Argument For Enforcing Arbitration In Sexual Harassment Claims, Jonathan Cisneros

Pepperdine Dispute Resolution Law Journal

This note argues that it is in the best interest of sexual harassment victims and the state of Indiana to not follow suit in passing legislation that prohibits employers from requiring mandatory arbitration in sexual harassment cases. This is based on an analysis of the potential factors underlying Indiana’s current lack of legislative movement, the weight of the arguments for and against mandatory arbitration, and consideration of the preemption issues surrounding state laws banning mandatory arbitration. Part II sets the foundation for this note by laying out the most pertinent parts of the FAA and analyzing how the U.S. Supreme …

You Be The Judge: Analyzing When The Federal Arbitration Act's Judicial Review Standards Apply In State Court, Max Birmingham

Pepperdine Dispute Resolution Law Journal

This article addresses whether, when the Federal Arbitration Act (“FAA”) governs an arbitration, the FAA’s judicial review standards apply in state court and preempt application of different state law judicial review standards. This argument proceeds as follows: Part I provides an introduction. Part II analyzes the procedural reform intent of the FAA and why the statute seeks to standardize the arbitration process. Part III reviews the judicial review of arbitration awards as promulgated in Hall Street Associates, L.L.C. v. Mattel, Inc. Part IV reviews the generations of FAA cases which have been held to be preempted by SCOTUS. Part V …

Restricting Double-Hatting To Safeguard International Arbitrations, Yasaschandra Devarakonda

Pepperdine Dispute Resolution Law Journal

Double-hatting is when an individual plays the dual role of an arbitrator and a legal counsel—a concept first introduced by Professor P. Sands during an IBA conference in 2009. While it hampers the credibility of the arbitral process, its proponents oppose a complete prohibition reflecting on its benefits. The author hypothesizes that this issue has been inadequately addressed in international commercial arbitrations in juxtaposition to international investment arbitrations. Supporting this, the author introduces the concept, tracing its judicial landscape and scholarly discourse in investment arbitrations highlighting the need to adopt a similar approach in commercial arbitrations. Thereafter, the definition of …

Micro-Mediation: A New First Step On The Mixed-Mode Alternative Dispute Resolution Ladder In Higher Education, Joseph C. Alfe

Pepperdine Dispute Resolution Law Journal

Higher education is fraught with disputes on both a macro and micro level. In a broad sense, institutions of higher education serve as a focal point for many disparate cultures, economic strata, ages, genders, races, ideologies, and other societal influences, and concentrates them within an insular community. Such an amalgamation of humanity is bound to produce conflicts of all kinds. These disputes can range from the elementary to the criminal. Title IX of the Educational Amendments of 1972 governs disputes rising to the level of sexual harassment or discrimination and are updated by periodic agency updates disseminated through “dear colleague” …

Lighting A Spark, Playing With Fire: Feminism, Emotions, And The Legal Imagination Of Campus Sexual Violence, Daniel Del Gobbo

Dalhousie Law Journal

Feminist law and policymakers have been inspired by collectively generated experiences of emotion that help to shape what counts as justice and injustice in campus sexual violence cases. Focusing on events surrounding the Dalhousie University Faculty of Dentistry in 2014–2015, this article explains how emotional incitements in the case contributed to an infrastructure that supported formal and specifically carceral responses to campus sexual violence. Correspondingly, this article explains why alternative modes of legal and political formation that challenged the premises of the formal law, including restorative justice, were misread by some commentators as a form of “weak justice” and therefore …

International Arbitration, Manuel Liatowitsch, Jonathan Blank, Jeffrey Rosenthal, Martine Forneret, Emily Scherker, Peter Ashford, Sabrina Janzik, Julianne Jaquith, Dawn Yamane Hewett, Rebecca Soquier, Helen Tang, Branda Horrigan, Anne Hoffman, Mitchell Dearness, Markus Schifferl, Christopher Boog, Benjamin Gottlieb, Diepiriye Anga, Sergey Morozov, Markian Malskyy, Oksana Karel, Anowar Zahid, Chad Catterwell, Cyril Cotterall-Debay, William Langran, Timur I. Sen, Keara A. Bergin, Christopher P. Denicola

The Year in Review

No abstract provided.

The Power Of International Nationality Courts When Settling Foreign Investment Disputes, Dr. Ibrahim Refaat El Beherry

UAEU Law Journal

States shall be sovereign in determining their nationality in accordance with their economic and social policies and circumstances. However, when international courts decide matters relating to their personal competence in international disputes, they may be called upon to rule on preliminary matters such as nationality. However, when these tribunals confer jurisdiction on themselves by this mission, they enjoy a broad discretion based on the general principles of people’s law, treaty law, case law, doctrine and the principle of jurisdiction-jurisdiction in arbitral matters. However, the scope of this recognized power is limited and its authorized investiture must not exceed the primary …

Conflicts Of Laws And Jurisdictions In Indonesia-Related Arbitrations Seated In Singapore – Perspectives From The Tribunal, Gary F. Bell

Indonesia Law Review

This article discusses the issues of conflicts of laws that may arise when the parties, including an Indonesian party, have a contract governed by Indonesian law which includes an arbitration clause that states that the seat of the arbitration is Singapore. After discussing the rules of conflict of laws applicable to the choice of a substantive law governing the contract and the arbitration clause, the article discusses the difficulties that parties and the tribunal often face in an arbitration in which Indonesian law is the governing law. It then discusses conflict rules affecting the validity of the arbitration agreement and …

Confidential Settlements For Professional Malpractice, Sande L. Buhai

St. John's Law Review

(Excerpt)

A lawyer representing a plaintiff in a professional malpractice case advises her client not to file a complaint with the state regulatory body—the state bar, the medical board, or some other pertinent body—until later. The lawyer explains that she can offer to settle the case more favorably, more quickly, and at lower cost if they promise that, as part of the settlement, defendant’s malfeasance will never be reported to the state regulatory body responsible for ensuring professional competence in the area. This tactic may allow the client to negotiate a larger settlement because the defendant should be willing to …

The Paga Saga, Tamar Meshel

Pepperdine Law Review

Employees routinely enter into employment contracts that contain arbitration ‎agreements and prohibit ‎them from bringing class and/or representative actions. These employees may therefore only bring claims against their ‎employers, ‎whether contractual or statutory, in arbitration on an individual basis. Such arbitration agreements and the class/representative action waivers that they contain are enforced nationwide pursuant to the Federal Arbitration Act (FAA). In California, however, a judge-made rule (the Iskanian rule) prohibits the enforcement of representative action waivers found in arbitration agreements with respect to employees’ claims of Labor Code violations under California’s Private Attorney General Act (PAGA). A judicial battle is …

Hearing, Darius Chan, Gerome Goh

Research Collection Yong Pung How School Of Law

In certain international commercial arbitrations, for instance, in expedited proceedings under the auspices of various institutional rules, the tribunal may decide the dispute based on documentary evidence only. However, in most cases, hearings are generally conducted for the tribunal to hear examination of any factual or expert witness and/or for oral argument. It is not uncommon for there to be multiple hearings in a single arbitration, with each hearing focusing on specific procedural or substantive issues. The hearing is therefore a forum for the parties to adduce evidence and/or put forward their legal views in direct confrontation with each other. …

Burdening Assignees With Arbitration Agreements Via ‘Conditional Benefits’, Chee Ho Tham

Research Collection Yong Pung How School Of Law

In this article, the author compares two concepts that seek to explain why an assignee of a chose in action may be burdened by an arbitration agreement to which it is not privy. He posits that, of the “conditional benefits” concept and the “subject to equities” principle, the latter provides the better explanation.

International Arbitration, Manuel Liatowitsch, Jeffrey Rosenthal, Martine Forneret, Emily Scherker, Peter Ashford, Sabrina Janzik, Matthew J. Weldon, Robert L. Houston, Christopher Boog, Benjamin Gottlieb, Gerard Meijer, Valerie Verberne, Michael Nueber, Alexander Bezborodov, Sergey Morozov, Bruno Guandalini, Hans-Christian Salger, Thomas Försterling, Diepiriye Anga, Sae Youn Kim, Andrew White, Anne Hoffmann, Chad Catterwell, Cyril Cotterall-Debay, William Langran, Timur I. Sen, Helen Tang, Rebecca Soquier, Tracey Cui, Briana Young, Jonathan Blank, Guido Carducci, Clifford J. Hendel, Tamari J. Lagvilava, Keara A. Bergin, Christopher P. Denicola

The Year in Review

No abstract provided.

The Death And Resurrection Of Dialogue, Cardozo Journal Of Conflict Resolution

2021–2022 Flyers

On Friday, March 11, 2022, the Cardozo Journal of Conflict Resolution hosted the Melnick Annual Symposium on “The Death and Resurrection of Dialogue.”

This Symposium examined the potential of the news media to develop public discourse and prevent conflict, the importance of dialogue and civic engagement in community building, methods to bridge inequalities in communities and in mediation, and the effect of virtual and caucus-only mediation on conflict resolution.

The Journal also presented the twenty-first annual International Advocate for Peace Award to William Ury, co-founder of Harvard’s Program on Negotiation and one of the world’s leading experts on negotiation and …

Developing Brunei Darussalam As An Asean Hub For International Islamic Finance Dispute Resolution: Opportunity Or Over-Ambition?, Nobumichi Teramura

Centre for Commercial Law in Asia

International dispute resolution is only at an early stage of development in Brunei. Although the government established the Brunei Darussalam Arbitration Centre (BDAC) in 2014 to provide domestic and international users with arbitration and mediation services, the institution has yet to attract a significant caseload. This is in contrast with neighbouring countries such as Singapore (a regional hub for international dispute resolution) and Malaysia (an active and rising centre of dispute settlement). Their flagship arbitration institutions, the Singapore International Arbitration Centre (SIAC) and the Asian International Arbitration Centre (AIAC) (formerly known as the Kuala Lumpur Regional Centre for Arbitration), handle …

The New Bailments, Danielle D’Onfro

Washington Law Review

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

Online Falsehoods, Constitutional Free Speech And Its Limits: The Online Citizen V The Attorney-General, Gary K. Y. Chan

Research Collection Yong Pung How School Of Law

The Singapore Court of Appeal has for the first time in The Online Citizen v The Attorney-General (8 October 2021) adjudicated on the constitutionality of correction directions issued by Ministers against allegedly false statements of fact under the Protection from Online Falsehoods and Manipulation Act 2019. An overarching framework was utilised to assess whether the Ministerial directions restrict free speech under Article 14(1)(a) of the Constitution; if so, whether the restrictions are justifiable under the Constitution and whether there is a rational nexus between the statutory aims and enumerated exceptions. This case comment also examines the constitutional stance towards subject …

A Requirement, A Factor, Or A Figure Of Speech? Role Of Prejudice When Challenging Awards Under The Model Law, Darius Chan, Zhi Jia Koh

Research Collection Yong Pung How School Of Law

Both parties and courts routinely invoke the term ‘prejudice’ in applications to set aside an arbitral award or refuse its enforcement. This suggests that the use of the term is more than just a figure of speech. It is generally understood that prejudice, in the sense of impact or effect on the outcome of the arbitration, is relevant for procedural challenges but not jurisdictional challenges. However, questions remain as to whether prejudice is legally relevant for challenges that are neither strictly procedural or jurisdictional in nature, whether prejudice is relevant as a factor for consideration or as a legal requirement …

The Legal Profession, Judiciary, And Dispute Resolution, John M. Lande

Faculty Blogs

The January 2022 issue of Dispute Resolution Magazine reports results of a survey of past contributors conducted by Editorial Board co-chairs Andrea Schneider and Michael Moffitt.

This post uses some of the survey responses to suggest that we recognize the legal profession and judiciary as part of the dispute resolution field.

The Impending Battle For The Soul Of Online Dispute Resolution, Oladeji Tiamiyu

Sturm College of Law: Faculty Scholarship

Legal professionals and disputants are increasingly recognizing the value of online dispute resolution (“ODR”). While the coronavirus pandemic forced many to resolve disputes exclusively online, potentially resulting in long-term changed preferences for different stakeholders, the pre-pandemic trend has involved a dramatic increase in technological tools that can be used for resolving disputes, particularly with facilitative technologies, artificial intelligence, and blockchains. Though this has the added benefit of increasing optionality in the dispute resolution process, these novel technologies come with their own limitations and also raise challenging ethical considerations for how ODR should be designed and implemented. In considering whether the …

How You Can Build A Mediation Model To Optimize Your Own Cases, John M. Lande

Faculty Blogs

Description of why formal mediation models, such as the facilitative and evaluative models, are incomplete and often misleading. Mediators constantly must answer the question “What do I do now?”, and the formal models don’t help in most situations. Lande suggests how mediators can develop their own, unique mediation models, relying in part on the work of psychologists Kenneth Kressel, Daniel Kahneman, and Amos Tversky.

Federally Mandated Online Sales Tax: A Logistical Solution For The Future Of E-Commerce, Daniel O'Connor

DePaul Business & Commercial Law Journal

No abstract provided.