Dispute Resolution and Arbitration Commons^™

Dear 1l: Five Guideposts For Your Future Professional Practice, Lela P. Love, Thomas J. Stipanowich

Cardozo Journal of Conflict Resolution

No abstract provided.

Procedures For The Enforcement Of New York Convention Awards, George A. Bermann

Faculty Scholarship

Article III of the New York Convention expresses the Contracting States’ core obligation under the Convention, namely the obligation to enforce Convention awards, absent a basis in the Convention for declining to do so. At the same time, the Convention drafters chose not to prescribe the manner in which such enforcement should take place. Article III expressly reserved the matter to the law of the place where enforcement under the Convention is sought.

Enforcement was to be achieved “in accordance with the rules of procedure of the territory where the award is relied upon.” The only limitations on the freedom …

The Future Of International Commercial Arbitration, George A. Bermann

Faculty Scholarship

Although international commercial arbitration is not subject to as much criticism as investor-State arbitration, it is nonetheless facing challenges going forward. These challenges are several, and only some can be addressed in this chapter. Some relate to concerns that have been with international arbitration for a long time. These include costs, delay and excessive formality, as well as arbitrator neutrality. Others – arbitration ethics, diversity, and transparency – are not new, but are taking on greater urgency. Still others simply represent new developments more or less extrinsic to international arbitration but with which international arbitration must cope. Among these changes …

Automating Fairness? Artificial Intelligence In The Chinese Court, Rachel E. Stern, Benjamin L. Liebman, Margaret Roberts, Alice Z. Wang

Faculty Scholarship

How will surging global interest in data analytics and artificial intelligence transform the day-to-day operations of courts, and what are the implications for judicial power? In the last five years, Chinese courts have come to lead the world in their efforts to deploy automated pattern analysis to monitor judges, standardize decision-making, and observe trends in society. This Article chronicles how and why Chinese courts came to embrace artificial intelligence, making public tens of millions of court judgments in the process. Although technology is certainly being used to strengthen social control and boost the legitimacy of the Chinese Communist Party, examining …

After First Options: Delegation Run Amok, George A. Bermann

Faculty Scholarship

The proper allocation of authority between courts and arbitral tribunals over the enforceability of agreements to arbitrate has long occupied a central place in U.S. arbitration law, domestic and international alike. From U.S. Supreme Court case law over the years, there has emerged a reasonably well-understood distinction between those issues of enforceability that a court will address if asked by a party to do so and those that it will not. Fundamental to the Court’s jurisprudence is a recognition that some enforceability issues – “gateway issues” – so seriously implicate the consent of parties to arbitrate their disputes that a …

Informing Wto Reform: Dispute Settlement Performance, 1995-2020, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste

Faculty Scholarship

This article presents salient facts on the performance of WTO dispute settlement, using an updated dataset on cases adjudicated between 1992 and mid 2020. The dataset provides a comprehensive compilation of information on WTO disputes, including complainants, respondents and third parties; the substantive matters tabled; the WTO provisions invoked; the claims that are accepted or rejected by adjudicating bodies; the time involved to complete the consultation, panel and appeal (Appellate Body) stages; and the identity of panelists and how they were appointed. We highlight elements of the operation of the system that are salient to WTO reform discussions, while drawing …

Plurilateral Cooperation As An Alternative To Trade Agreements: Innovating One Domain At A Time, Bernard M. Hoekman, Charles F. Sabel

Faculty Scholarship

At the end of 2017 different groups of WTO members decided to launch talks on four subjects, setting aside the WTO consensus working practice. This paper argues that these ‘joint statement initiatives’ (JSIs) should seek to establish open plurilateral agreements (OPAs) even in instances where the outcome can be incorporated into existing schedules of commitments of participating WTO members. Designing agreements as OPAs provides an institutional framework for collaboration among the responsible national authorities, transparency, mutual review and learning, as well as alternatives to default WTO dispute settlement procedures which may not be appropriate for supporting cooperation on the matters …

The Transient And The Permanent In Arbitration, William W. Park

Faculty Scholarship

Several years ago, Jan Paulsson observed that Derek Roebuck might substitute for a time machine, providing a way for us to voyage backward with a guide to put everything in context. Indeed, the great Derek Roebuck, to whom we dedicate this set of essays, gave much of his professional life to making sure that by receiving a glimpse of dispute resolution in earlier times, we might have an opportunity better to understand the reality of present-day arbitration.

Will They Stay Or Will They Go? An Examination Of South Africa’S International Invest Arbitration Policy, Taylor Bates

Brooklyn Journal of International Law

In 2018, South Africa’s much debated Protection of Investment Act, 2015 went into effect. Designed to replace the state’s bilateral investment treaties, the Act signified a radical shift in South Africa’s attitude towards international investment policy. South Africa’s decision to terminate its bilateral investment treaties is part of a larger, ongoing discussion surrounding investor-state dispute resolution reform. This Note seeks to examine South Africa’s Protection of Investment Act, 2015, its proposal for investor-state dispute settlement reform to Working Group III, and its comments during investor-state dispute settlement reform meetings, through the lens of Albert Hirschman’s Exit, Voice, and Loyalty theory. …

The Singapore Convention On Mediation: A Brave New World For International Commercial Arbitration, Robert Butlien

Brooklyn Journal of International Law

Mediation is a form of alternative dispute resolution (“ADR”) where a negotiation is facilitated by a neutral third party. The key feature of mediation is its voluntary nature. Whether it is used to resolve a family law, employment law, or complex international commercial dispute, mediation is always valuable due to its speed, cost, and ability to maintain relationships between parties when compared to conventional litigation. Despite these benefits, international commercial mediation in particular had previously faced one notable weakness: the lack of enforceability of mediation settlement agreements (“MSA”). The United Nation’s Convention on International Mediated Settlement Agreements Resulting from Mediation …

Libertad For All? Why The Helms-Burton Act Is An Empty Promise Of “Freedom” For The Cuban People., Cristina L. Lang

Brooklyn Law Review

After the Cuban Revolution, the Castro government nationalized the property of many American nationals, which served as a justification for the Kennedy administration’s decision to institute a general economic embargo on Cuba. This embargo was officially codified in the late 1990s in the Cuban Liberty and Democratic Solidarity (Libertad) Act, enacted by President Bill Clinton. Title III of this Act was suspended since its enactment. By creating a private cause of action for American nationals to sue “traffickers” of their improperly nationalized Cuban property, Title III aims to deter foreign investment into Cuba and compensate American citizens whose Cuban property …

Merging Mediation Models – And Other Lessons, John Lande

Faculty Blogs

This post offers suggestions for teaching about mediation practice without focusing primarily on the problematic traditional mediation theories described in Section 3.C. It suggests that faculty (1) help students understand dynamics related to assessments of court outcomes, (2) teach students to strategically combine elements from the traditional models, (3) teach them how to manage the counteroffer process, (4) include lawyer-client relationships in simulations, and (5) use longer simulations including preparation for mediation sessions.

Arbitration (Tahkim) And Reconciliation (Sulh) In Islam As Alternative Dispute Resolution Mechanisms, Saidilyos Khakimov

The Light of Islam

The main reason behind this work is to illustrate the current need for Islamic alternative dispute resolution methods and offer analysis to show the benefts of their applications. There has been a vivid rise in ADRs’ recognition globally as a substitute for litigation and related issues that would be better if addressed with an Islamic perspective. The wide usage of the term has been intensifed uninterruptedly after the second half of the 20th century. This paper intends to introduce a 1,5-centuryyear-old background of legally institutionalized arbitration
(Tahkim) and reconciliation (Sulh), Islamic means or ways of alternative dispute resolution. I will …

The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas

Pace International Law Review

The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while …

Lira In Criminal Cases, John Lande

Faculty Blogs

This post describes how the LIRA framework can be adapted in criminal cases and used in plea bargaining. It suggests how to calculate and use bottom lines in these cases.

Concepts That Can Help Practitioners Help Parties Make Decisions In Disputes, John Lande

Faculty Blogs

A fundamental purpose of dispute resolution practitioners is to help people make decisions about processes, procedures, and issues in managing their conflicts. This post lists concepts to help people make decisions about the choice of dispute resolution process, specific procedures in a given process, and resolving issues in dispute. In resolving disputes, people should consider the value of plausible options and the future tangible costs and intangible costs and interests of continuing the dispute. The post lists specific cognitions, possible actions, and practitioner interventions promoting good decision-making.

Lamps Plus, Inc. V. Varela: Dark Times Ahead For Class Arbitrations, Joanna Niworowski

University of Miami Law Review

The Federal Arbitration Act (“FAA”) was enacted in 1925 to combat judicial hostility towards arbitration. Over the years, the U.S. Supreme Court has interpreted this statute as evidencing a pro-arbitration policy and has upheld the use of arbitration clauses in a variety of contracts. Unfortunately, while the FAA was able to overcome the hostility towards arbitration, it was not able to stop the Court from finding a new target: class arbitrations.

This Comment analyzes the Supreme Court’s recent decision in Lamps Plus, Inc. v. Varela. In critiquing the Court’s continued erosion of the availability of class arbitrations, this Comment considers …

Evolution Of A Field: Personal Histories In Conflict Resolution, Howard Gadlin, Nancy A. Welsh

DRI Press

This book features 23 chapters written by founders, thinkers, inventors, reformers, disrupters and transformers in the field of conflict resolution, thus allowing readers to explore the field’s real, on-the-ground reasons for being and evolving. The contributors include mediators, facilitators, arbitrators, ombuds, academics, system designers, entrepreneurs, leaders of conflict resolution organizations, researchers, advocates for conflict resolution, and critics of conflict resolution. They share their personal and professional stories as well as the values, aspirations and characteristics of the field that inspired them to become involved in conflict resolution, develop their careers, and both influence and wrestle with the field’s evolution.

Contributors …

A Litigator’S Guide To The Galaxy: A Look At The Pragmatic Questions For Adjudicating Future Outer Space Disputes, Michael J. Listner, Joshua T. Smith

Vanderbilt Journal of Entertainment & Technology Law

Since the beginnings of the space age, outer space activities have been the realm of government with ancillary involvement by non-governmental actors. The international legal framework for outer space contemplated the involvement of non-governmental actors, but in creating dispute resolution mechanisms the role of non-governmental entities was not considered ripe. The surge of direct non-governmental involvement in outer space activities in recent years again raises the issue of dispute resolution and exemplifies the lack of dispute resolution mechanisms designed to address differences between sovereign states. As the pace of non-governmental activity increases, so does the likelihood of disputes arising between …

Seven Keys To Unlock Mediation’S Golden Age: The Introduction, Nadja Alexander, Lela P. Love

Research Collection Yong Pung How School Of Law

Mediate.com has published a series of peer reviewed articles under the collective title Seven Keys to Unlock Mediation’s Golden Age. The objective of the Seven Keys is to encourage discussion among all stakeholders on navigating mediation’s best future. The seven keys are: Leadership, Data, Education, Profession, Technology, Government and Usage. Each key has between two and four articles, each no more than 1,200 words in length, contributed by some 40 leading authors around the world. Professors Nadja Alexander and Lela P. Love introduce the series with “Imagine.” The Seven Keys articles portray a variety of images and understandings of mediation. …

Mediating Consumer Financial Disputes: Financial Industry Disputes Resolution Centre's Unique House Style, Eunice Chua, Beverly Wee

Research Collection Yong Pung How School Of Law

The Financial Industry Disputes Resolution Centre (“FIDReC”) was established in August 2005 with the purpose of providing a low-cost avenue for consumers to resolve their disputes with financial institutions. This article seeks to outline the role of FIDReC and its processes and, at the same time, seeks to define the house style of mediation that has served FIDReC well over the years. This article also highlights some of the different techniques adopted by FIDReC mediators in the course of facilitating the mediation.

Mediation And Appropriate Dispute Resolution, Nadja Alexander, Shou Yu Chong

Research Collection Yong Pung How School Of Law

2019 was a significant year for mediation. On 7 August 2019, 46 states – an unprecedented number – came together in Singapore to sign the United Nations Convention on International Mediated Settlement Agreements Resulting from Mediation (“Singapore Convention”). The Convention, which comes into force on 12 September 2020, provides a legal framework for the recognition and enforcement of mediated settlement agreements across borders and thereby addresses one of the major criticisms of international mediation, namely, the lack of an internationally recognised expedited enforcement mechanism. The Singapore Convention aims to be for mediation what the Convention on the Recognition and Enforcement …

Problems With Teaching “Integrative” Negotiation, John Lande

Faculty Blogs

This post responds to Debra Berman’s piece, Is Our Over-Emphasis on Integrative Negotiation Pedagogy Falling Short of Reality? My answer is “yes.” Much – perhaps most – negotiation and mediation of civil cases these days in the US involves a counteroffer process where lawyers focus almost exclusively on allocating money based on a zero-sum assumption. So if our courses focus too much on interests-and-options processes, students get a misimpression about the frequency of what happens in the real world. If we don’t prepare them to operate effectively in practice, they will be in for a rude surprise after they graduate. …

Nine Justices And #Metoo: How The Supreme Court Shaped The Future Of Mandatory Arbitration And Sexual Harassment Claims, Tamra J. Wallace

Maine Law Review

When the Federal Arbitration Act was signed into law in 1925, none would have guessed it would be used to perpetuate a system of silence surround workplace sexual harassment. With the Supreme Court’s continued stance to liberally applying the Act to uphold arbitration agreements contained within employment agreements over the past decades, it is apparent that any change needed to protect vulnerable workers will need to come from federal legislation. The rise of the #MeToo movement across the nation, and throughout various employment sectors, may be the push needed to bring about the necessary change.

A Message For Law Students To Prepare Themselves For Legal Practice, John Lande

Faculty Blogs

This post includes suggestions to help plan self-directed learning to supplement what students learn in law school. It recommends that students (1) appreciate the values and limitations of the law, (2) recognize the “hidden curriculum” in law school, (3) understand that “thinking like a lawyer” really is about helping clients achieve their goals, (4) develop a strategic plan for their education, (5) compile a portfolio, (6) take clinical, externship, and practice courses, (7) interview practitioners, and (8) join the ABA and other bar and professional associations.

You Really Should Know About Kris Franklin, John Lande

Faculty Blogs

This post profiles New York Law School Professor Kris Franklin. She teaches a negotiating, counseling, and interviewing course, which she says really should be called “Client Representation and Case Handling.” Her course on family law practice teaches all the family law doctrine covered in traditional family law courses but she does it exclusively using simulations. In contrast to my suggestion for renaming law school as “negotiation school,” she suggests calling it “legal problem-solving school,” which I think is even better.

Study Finds That Law Schools Fail To Prepare Students To Work With Clients And Negotiate, John Lande

Faculty Blogs

This post provides excerpts from the Building a Better Bar study about new law school graduates’ unmet instructional needs. The study found that new lawyers were “woefully unprepared” to work with clients. They had difficulty (1) communicating with clients, (2) managing expectations, (3) breaking bad news, (4) coping with difficult clients, (5) negotiating with counterparts and clients, and (5) understanding the “big picture” of client matters.

Need For Clear Language Initiative To Un-Babel Our Models, John M. Lande

Faculty Blogs

Professional jargon is helpful in some fields because it promotes communication between professionals like brain surgeons and rocket scientists.

But jargon is extremely problematic for dispute resolution because it confuses and excludes laypeople and other stakeholders.

Briefing Note: Aligning International Investment Agreements With The Sustainable Development Goals, Lise Johnson, Lisa E. Sachs, Nathan Lobel

Columbia Center on Sustainable Investment Staff Publications

Policy makers and other stakeholders are currently asking fundamental questions about whether and to what extent international investment agreements (IIAs) are consistent with and are helping to advance sustainable development objectives at home and abroad.

A 2019 paper from CCSI examines the alignment of IIAs with the 2030 Sustainable Development Agenda, arguing that while FDI will play an important role in advancing development outcomes, existing treaties must be reformed and future IIAs reimagined in order to achieve deep alignment with the sustainable development goals.

The paper proposes that IIAs should be designed and evaluated with respect to their ability to …

Vedanta Resources Holdings Limited V Zccm Investment Holdings Plc And Konkola Copper Mines Plc, Caz/08/249/2019, Sangwani Patrick Ng’Ambi, Chanda Chungu

SAIPAR Case Review

No abstract provided.