Dispute Resolution and Arbitration Commons^™

Dispute Settlement Under The African Continental Free Trade Area, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

Article 20 AfCFTA establishes a Dispute Settlement Mechanism, the Protocol on Rules and Procedures on the Settlement of Disputes (‘the AfCFTA DSM Protocol’; ‘Protocol’) and a Dispute Settlement Body (‘DSB’) for resolving disputes between State Parties. The AfCFTA dispute settlement mechanism is a central element of the AfCFTA as it provides security and predictability to the regional trading system (Art 4 AfCFTA-DSM Protocol). The AfCFTA dispute settlement mechanism will ‘preserve the rights and obligations of State Parties under the Agreement and clarify the existing provisions of the Agreement in accordance with customary rules of interpretation of public international law’ (Art …

Contents And Masthead, Amy Jicha

Pepperdine Dispute Resolution Law Journal

No abstract provided.

The Legal Boundaries For Impartiality Of Idea Hearing Officers: An Update, Perry A. Zirkel

Pepperdine Dispute Resolution Law Journal

Special education has become a significant area of litigation in the K-12 school context. The impartial hearing officer (“IHO”) is the fulcrum of the adjudicative process under the Individuals with Disabilities Act (“IDEA”). However, the IDEA only provides for two standards for impartiality while the framework of remaining standards are left—via the IDEA’s structure of “cooperative federalism”—to state laws. Ultimately, the courts serve as the chief cartographer for the legal boundaries of IDEA IHO impartiality in their interpretation, gap-filling, and application of the federal and state framework. The previous research relating at least in part to IDEA IHO impartiality is …

The Faux Pas Of Automatic Stay Under The Indian Arbitration Act, 1996 - The Hcc Dictum, Two-Cherry Doctrine, And Beyond, Sai Ramani Garimella, Gautam Mohanty

Pepperdine Dispute Resolution Law Journal

In the matter of Hindustan Construction. Co. v. Union of India, the Honorable Supreme Court of India (“SCI”) was presented with an opportunity to adjudicate upon a petition challenging the constitutional validity of Section 87 of the Arbitration and Conciliation Act of 1996 (“1996 Act”) as inserted by Section 13 of the Arbitration and Conciliation (Amendment) Act of 2019 (“2019 Act"). The legislative insertion stated that amendments made to the 1996 Act by the Arbitration and Conciliation Act of 2015 (“2015 Act”) would not apply to court proceedings arising out of, or in relation to, arbitral proceedings initiated before the …

Employment Arbitration Agreements: The Case For Ethical Standards For Dispute Resolution System Designers, Michael L. Russell

Pepperdine Dispute Resolution Law Journal

Dispute resolution design is an emerging field, both academically and professionally. Attorneys, mediators, and arbitrators, the other roles in the alternative dispute resolution process, have codes of ethics which guide their conduct. Dispute resolution designers, however, have no such guidelines. This article uses the example of mandatory arbitration agreements in the employment context to illustrate why this lack of ethical guidelines for dispute resolutions designers is problematic. In recent years, mandatory arbitration agreements significantly impacted employment law and litigation. The two most problematic provisions that often appear in mandatory arbitration agreements in the workplace context are cost sharing provisions and …

When Accessing Justice Requires Absence From The Courthouse: Utah’S Online Dispute Resolution Program And The Impact It Will Have On Pro Se Litigants, Julianne Dardanes

Pepperdine Dispute Resolution Law Journal

According to the 2017 Justice Gap Report conducted by Congress’s non-profit Legal Services Corporation (LSC), eighty-six percent of civil legal issues involving low-income Americans received scant or no legal assistance. The number of unrepresented (“pro se”) litigants continues to rise, with low-income Americans constituting a significant portion of this population. Due to the inefficiency of socioeconomically challenged litigants appearing pro se, this article proposes implementing Utah’s court-mandated Online Dispute Resolution (ODR) program as a solution nation-wide. Utah’s ODR program for small claims is revolutionary because it is the first ODR system able to handle an entire dispute instead of only …

Taking A Shot At Mediation Is The Solution To Nba Player-Trade Demands, Jemuel Gascon

Pepperdine Dispute Resolution Law Journal

This article proposes that the upcoming CBA in 2024 should include an initial mediation process for voluntarily resolving trade demands. Part two of this article looks at the background of player-trade demands; it looks at past demands in both the NBA and other sports.37 It also explores the pros and cons about player-trade demands and how they affect the NBA.38 Part three of this article proposes that the use of mediation can tame trade demands’ negative side effects and explores the proposition of including a voluntary mediation clause for trade demands on the next CBA negotiations.39 Part four will raise …

The “Fundies” Of Adr In The Nhl, Niko Tsiouvaras

Pepperdine Dispute Resolution Law Journal

This note seeks to provide to an overview of how the fundamentals (or “fundies” in hockey circles) of ADR can be applied to the NHL’s most pressing issues. It will analyze two areas specifically: the overall CBA negotiations in the big picture and the RFA system in a narrower view. Part II will provide context of the events leading up to the current NHL landscape. It will outline the history of NHL–NHLPA relations, describe the main issues influencing the upcoming CBA negotiations, and explain the workings of the RFA system. Part III will then present and discuss proposed solutions to …

Level The Playing Field: Advocating For The Removal Of Major League Baseball’S Prohibition On The Admissibility Of Statcast-Generated Sabermetrics As Evidence In Salary Arbitration Hearings, Christian Podest

Pepperdine Dispute Resolution Law Journal

This paper argues that Major League Baseball should amend its Collective Bargaining Agreement (CBA) to remove the outright ban on certain types of statistical evidence to help prove a player’s value. First, the paper briefly describes the history of the compensation system in the MLB and its evolution. Then, it details how final offer arbitration became the default mechanism for resolving compensation disputes between teams and players. The paper subsequently focuses on the Collective Bargaining Agreement’s carve-out of statistical evidence and notes the similarities and differences between Major League Baseball’s evidentiary standards governing salary arbitration hearings and the Federal Rules …

In Contracts We Trust (And No One Can Change Their Mind)! There Should Be No Special Treatment For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Dilyara Nigmatullina’S New Article On Planned Early Dispute Resolution And Technology, John Lande

Faculty Blogs

This post summarizes Dilyara Nigmatullina’s article entitled, Planned Early Dispute Resolution [PEDR] Systems and Elements: Experiences and the Promise of Technology. It investigates actual experiences of companies using PEDR systems and discusses the effect that the companies’ shift to PEDR has on law firms. It concludes by exploring how PEDR systems can benefit from the use of technological tools and how the interaction between technology and dispute resolution can affect the future of the legal profession. PEDR is discussed in Section 8.

Crisis, Continuity, And Change In International Investment Law And Arbitration, Valentina Vadi

Michigan Journal of International Law

The dialectic between continuity and change lies at the heart of international law, which seeks to foster peaceful, just, and prosperous relations among nations. International law endeavors to govern the future by applying, in the present, norms that are inherited from the past. Nonetheless, everything flows and in an ever-changing world, some change is needed within the international legal system to ensure its stability especially in time of crisis. Not only can crises constitute means for the development of international law, but they can test, undermine or ultimately buttress the structure of international law. This article explores the connection between …

The Hague Rules On Third-Party Joinder: A Revised Framework, Emma Macfarlane

Michigan Business & Entrepreneurial Law Review

This paper critically assesses the Hague Rules’ stance on third-party joinder. Third-party joinder is an important feature in business human rights disputes. It is a mechanism that victims of human rights abuses can use to bring claims against corporate defendants where the victims do not otherwise have an underlying agreement on which to base their claim. Keeping in line with traditional conceptions of commercial arbitration, the Hague Rules are grounded in party consent to arbitrate. Conceptions of consent therefore have an outsized impact on the universe of parties who can bring actions against corporations before arbitral tribunals for human rights …

Investor-State Mediation: How The Landscape Is Changing [Sidra Survey], Nadja Alexander

Research Collection Yong Pung How School Of Law

Slowly but surely the dispute resolution landscape is shifting for investment related disputes. More than half the respondents to the International Dispute Resolution Survey published by the Singapore International Dispute Resolution Academy (SIDRA) last year indicated that they have been involved in an investor-state dispute between 2016 and 2018. And, it is of course no surprise the majority of survey respondents indicated that institutional arbitration was the mechanism of choice to resolve investor-state disputes.

Bargaining In The Shadow Of Investor-State Mediation: How The Threat Of Mediation Will Improve Parties' Conflict Management, Andrea Kupfer Schneider, Nancy A. Welsh

Faculty Scholarship

Issues of access to justice, threats to national sovereignty, and perceptions of inconsistency and arbitrariness have led to a crisis of confidence in the investor-state arbitration system. In response, there has been a successful push for the inclusion of mediation in treaty provisions and arbitration rules, as well as ratification of the Singapore Convention for the expedited enforcement of mediated agreements. Nonetheless, very little mediation is actually occurring on the ground. Efforts to increase the use of mediation have failed to address concerns such as the political costs of settling cases, the lack of coordination between state agencies with different …

The Recent Federal Withdrawal Of Limitations On Supplemental Environmental Projects And Importance To Environmental Justice Initiatives, Christina Giordanella

Cardozo Journal of Equal Rights & Social Justice

The note discusses the significance of Supplemental Environmental Projects (SEPs) in advancing environmental justice, particularly benefiting low-income and minority communities. It highlights the Biden administration's reversal of Trump-era restrictions on SEPs, which previously limited their use. The article argues that SEPs are legally valid tools supported by Congress through various environmental statutes and court rulings, despite challenges from the Trump administration. It emphasizes the need for explicit Congressional authorization to secure the future of SEPs and expand their use in settlements.

Digital Readiness Index For Arbitration Institutions: Challenges And Implications For Dispute Resolution Under The Belt And Road Initiative, Allison Goh

Research Collection Yong Pung How School Of Law

Post-COVID-19, a paradigm shift has occurred in the adoption of technology in arbitration. Leading arbitral institutions have adapted quickly, highlighting the foresight of institutions who have existing technological infrastructure in place. This article proposes a ‘Digital Readiness Index’, which aims to evaluate arbitral institutions on their level of digital readiness based on five evaluative indicators. Cross referenced against Institute for Management Development (IMD’s) 2019 World Digital Competitiveness Rankings, the findings reveal synergies between an economy’s digital competitiveness and the adoption of technology in dispute resolution. To further the development of dispute resolution processes under the Belt and Road Initiative, strategic …

The Emergence Of Mediation Law In Asia: A Tale Of Two Cities, Nadja M. Alexander

Research Collection Yong Pung How School Of Law

Contemporary mediation systems are emerging throughout Asia. In 2019, 16 jurisdictions from Asia and the Pacific region signed the UN Convention on International Mediation Settlement Agreements Resulting from Mediation (the Singapore Convention). Asian signatories include its three largest economies, five ASEAN countries and seven members of the RCEP.

Why is this important? In a strict legal sense, the Singapore Convention is an instrument to facilitate the enforcement of international mediated settlement agreements (iMSAs), however its broader objective is to facilitate cross-border trade and investment as is reflected in its Preamble.

The Singapore Convention promises to leave a significant impact on …

Utah, Odr, And The New “Millennial”Um, Devin Cooper

Brigham Young University Journal of Public Law

No abstract provided.

Upaya Hukum Pemegang Fidusia Terhadap Penyitaan Objek Jaminan Berdasarkan Putusan Pengadilan Negeri Nomor 305/ Pdt.G/2019/Pn.Jkt.Utr., Fricilia .

Indonesian Notary

Penelitian ini membahas mengenai kasus perdata yang diperiksa dan diadili di Pengadilan Negeri Jakarta Utara dengan perkara Nomor 305/Pdt.G/2019/PN.Jkt.Utr. Pihak Penggugat adalah perusahaan yang bergerak dalam pembiayaan leasing, sedangkan Tergugat adalah perorangan yang telah mendapatkan fasilitas kredit dari Penggugat. Kemudian dalam perjalanannya Tergugat wanprestasi dalam hal menunggak pembayaran yang diketahui bahwa Tergugat sedang dalam kasus tindak pidana narkotika serta objek jaminan fidusia menjadi barang sitaan Kejaksaan Negeri Jakarta Utara untuk dimusnahkan. Penggugat melakukan gugatan dan sita jaminan dimana berdasarkan putusan Pengadilan Negeri Nomor 305/Pdt.G/2019/PN.Jkt.Utr., Penggugat dimenangkan dan kemudian dikeluarkan sita jaminan kendaraan atas milik Tergugat untuk diserahkan ke Penggugat. Adapun …

The Rcra Citizen Suit Provision And The Private Remedy Of Restitution After Kfc Western, Inc. V. Meghrig And Furrer V. Brown: Reasonable Minds May Differ, J. Thomas Blaine Lewis

Journal of Natural Resources & Environmental Law

No abstract provided.

The Obligatory Nature Of Arbitration Awards And Their Implementation In National And International Arbitration Dr. George Hazbon Hazbon & Dr. Radwan Obaidat, George Hazboun

UAEU Law Journal

This research aimed to analyse the arbitration award in it's various natures to deal with the principle of resjudicate issue in the domestic arbitration, the foreign arbitration and the private international one. Also the research dealt with the exceptions to the principle in a comparative view, to focus finally on the possibility of considering an absolute effect of the principle besides the relative one.

Anna Howard’S New Book Examines Why Businesses Don’T Use Mediation – And Other Issues, John Lande

Faculty Blogs

Anna Howard‘s book, EU Cross-Border Commercial Mediation: Listening to Disputants – Changing the Frame; Framing the Changes, provides valuable insights about business disputing. Her study is based on 21 semi-structured interviews of senior in-house counsel in multi-national companies operating in Europe. It shows that lawyers think about disputes from the outset of problems, not simply at the later stages of cases. The study pays particular attention to why businesses don’t use mediation, highlighting the impact of internal organizational dynamics.

Writing Condition And Electronic Arbitration A Comparative Study, Ibrahim Sabri Al-Arnaout

UAEU Law Journal

This research is concerned with the issue of writing the arbitration agreement which is a formal condition required by the comparative legislation to conclude the arbitration agreement. Its purpose is to identify all the legal aspects of this condition and demonstrate its concept, nature and aspects. Then a question about the extent of the need for the traditional writing condition for the electronic arbitration agreement to be legal and correct is raised out with respect to showing the concept of this kind of arbitration. Namely, how the writing condition is satisfied within it and what the required conditions for the …

Comments To The Draft Working Group Iii Workplan, Columbia Center On Sustainable Investment, International Institute For Environment And Development, International Institute For Sustainable Development

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …

Choice Of Law Governing A Contract Where Its Existence Is In Dispute: Clarifications From The Singapore International Commercial Court In Lew, Solomon V Kaikhushru Shiavax Nargolwala, Shou Yu Chong

Research Collection Yong Pung How School Of Law

The Singapore International Commercial Court’s judgment in Lew, Solomon v Kaikhushru Shiavax Nargolwala [2020] 3 SLR 61 is noteworthy as it heralds a modest development in Singapore private international law, especially in respect to the not uncommon issue of disputes over cross-border contracts where its existence is challenged. This case represents one of the handful of Singapore precedents which directly addresses the difficult conundrum where both the governing law and the existence of the underlying contract are in dispute. Under this context, it articulates a default choice of law position – the lex fori – where it is impossible to …

The Economics Of Class Action Waivers, Albert H. Choi, Kathryn E. Spier

Articles

Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and the U.S. Supreme Court has endorsed companies’ ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices? This paper synthesizes and extends the existing law and economics literature by analyzing the firms’ incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it …

What’S Happening In International Mediation In 2021? [Sidra Survey], Nadja Alexander, Samantha Clare Man Xin Goh, Ryce Lee

Research Collection Yong Pung How School Of Law

The Singapore International Dispute Resolution Academy (“SIDRA”) issued the global International Dispute Resolution Survey: 2020 Final Report (the “SIDRA Survey”) on 3 July 2020, which studied the preferences, experiences, and perspectives of legal users (lawyers and legal advisers) and client users (corporate executives and in-house counsel) with regard to, among other mechanisms, international commercial mediation. Previous blogs have commented on the Survey findings. The SIDRA Survey was followed by a qualitative study conducted between November to December 2020, consisting of in-depth interviews held with 18 Legal Users and Client Users from 11 countries (“SIDRA Interviews”). This post focuses on some …

New Edition Of Psychology For Lawyers, John Lande

Faculty Blogs

This post describes the second edition of Jennifer Robbennolt and Jean Sternlight’s book, Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making. Based on the latest research, it provides insights about perception, memory, judgment, decision making, emotion, persuasion and influence, communication, and the psychology of justice. It applies these insights tasks to daily tasks of lawyering, including interviewing, negotiating, counseling, and conducting discovery.

The Arbitration System In Dealing With Urgent Requests, Musaed Alenzi

UAEU Law Journal

Since the appearance of the arbitration system and its advantages, the state's monopoly of judiciary has retreated and the state ceded part of its general authority by allowing individuals and private entities to solve some of their disputes through ways they have consented to follow.

However, the state has still had urgent judiciary - beside the substantive judiciary – which guarantees quick and temporary solutions when imminent risk threatens their interests. As a result, the inquiry can be raised as whether the arbitrary judiciary has jurisdiction over disputes concerning imminent risks or not. After reviewing articles No. 173 – 188 …