Dispute Resolution and Arbitration Commons^™

Masthead & Table Of Contents, Carson W. Bennett

Pepperdine Dispute Resolution Law Journal

No abstract provided.

The Advantages Of Incorporating Mechanisms From The Salary Arbitration Models Of Mlb And The Nhl In A Salary Arbitration System In Mls, Andrew Real

Pepperdine Dispute Resolution Law Journal

This article will propose that Major League Soccer adopt a salary arbitration system similar to that used in both Major League Baseball and the National Hockey League. MLS should emulate those strategies of other professional leagues that have resulted in growth. The salary arbitration model is one such advantageous strategy. Part II of this article will provide a summary of the current salary structures and mechanisms of MLS. Part II will also discuss the problems and the origins of the problems associated with MLS's current salary structures and mechanisms. Part III will summarize how salary arbitration is utilized in MLB. …

Israeli Perspectives On Alternative Dispute Resolution And Justice, Omer Shapira

Pepperdine Dispute Resolution Law Journal

Israel is a highly litigious country with an overburdened legal system infected with delays. In addition, Israeli society is highly diversified and saturated with social disagreements and rifts between groups. This article identifies two concepts of justice in ADR discourse in Israel—Justice as Efficiency and Justice Beyond Efficiency—and illustrates their application in the context of several ADR developments in the court system, community mediation, the education system, environmental conflicts, and complaints against public bodies. Using these visions of justice, the article explores the justice goals of ADR in Israel, assesses whether they have been achieved, and considers the future of …

Singapore Case Note: Settlement Agreement Invoked As Shield, Nadja Alexander, Shou Yu Chong

Research Collection Yong Pung How School Of Law

The Singapore Convention on Mediation makes clear that international mediated settlement agreements (iMSAs) may be used as a sword or invoked as a shield in judicial or arbitral proceedings (defence). In the post-Singapore Convention world, lawyers are looking closely at the extent to which courts may recognise settlement agreements, especially mediated settlement agreements, as a shield or a defence to arbitral or litigation proceedings.

Optimising Performance: How Jungian Alchemy Informs Organisational Transformation, Nadja Alexander, Michelle Lebaron

Research Collection Yong Pung How School Of Law

In this paper we explore the alchemical possibilities of aesthetics in transforming organizational performance. We ground our discussion in an exploration of how four alchemical elements – earth, water, air and fire – identified in the work of Swiss psychiatrist Carl Jung, can catalyse transformation. Inspired by Jung, we examine how these elements help us to better build awareness – of ourselves, of others in teams and work groups, and of untapped potential in organizational contexts. By developing greater awareness of aesthetics and their alchemical potential, leaders can better navigate the emergent and complex workings of organizational transformation processes, whether …

Singapore Convention Series: Bill To Ratify Before Singapore Parliament, Nadja Alexander, Shou Yu Chong

Research Collection Yong Pung How School Of Law

Signing on to the Singapore Convention is only the beginning. The Convention will come into force six months after three States have ratified it into their domestic law (Article 14 of the Convention). A Bill currently before the Singapore Parliament seeks to pave the way for that – ratify the Convention in Singapore through the enactment of legislation to implement its terms. It is anticipated that the Singapore Convention on Mediation Bill (the ‘Bill’) will be passed into Law before the end of March 2020. It may very well be the first piece of legislation that ratifies the Convention. Other …

The New Qui Tam: A Model For The Enforcement Of Group Rights In A Hostile Era, Myriam E. Gilles, Gary Friedman

Articles

The present Administration has made clear it has no interest in enforcing statutes designed to protect workers, consumers, voters, and others. And, as we have chronicled in prior work, the ability of private litigants to enforce these laws has been undercut by developments in the case law concerning class actions—particularly class-banning arbitration clauses. As these critical enforcement methods recede, will alternative methods of prosecuting claims arise? How might they work? Are they politically and fiscally sustainable? We focus here on a promising approach just now coming into view: qui tam legislation authorizing private citizens to bring representative claims on behalf …

How To Calculate And Use Batnas And Bottom Lines With Lira, John Lande

Faculty Blogs

This blog post provides an overview of the book, Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions, which I co-authored with Michaela Keet and Heather Heavin. The book describes how practitioners can (1) avoid common decision-making errors in litigation, (2) anticipate likely court outcomes, (3) communicate with clients about what’s most important to them, (4) help them make better decisions, (5) negotiate and mediate more effectively, and (6) learn about technological tools to help make decisions in litigation.

Instead of focusing only on the value of the best alternative to a negotiated agreement (BATNA), the …

Does The New York Convention Allow A Non-Party To An Arbitration Agreement To Use Equitable Estoppel To Compel Arbitration?, Robert Jarvis

Faculty Scholarship

No abstract provided.

Beyond Settlement: Reconceptualizing Adr As “Conflict Process Strategy”, Deborah Thompson Eisenberg

Faculty Scholarship

“Alternative dispute resolution” or “ADR” has reached a paradoxical moment: it is both ubiquitous in practice and at risk of extinction as a distinct concept and field. As the ADR field nears middle age—nearly fifty years after the Pound Conference of 1976—“ADR” has become so popular in name, fractured in practice, and jumbled in theory that it risks a metaphorical genericide, a concept in trademark law when a product name is used to refer to so many things (incorrectly) that it becomes “generic” and confusing. Analogously, the name “ADR” has been applied to so many different processes and concepts that …

Criminalization Of Young Black Males, Useni Eugene Perkins

Cultural Encounters, Conflicts, and Resolutions

ABSTRACT

This paper examines the historical, social, cultural and political factors that contribute to the criminalization of a disproportionate number of young Black males. In doing so, it provides greater clarity for the reasons we are “walking in circles” to find a solution to why these youth are facing a future that is indisputably bleak. In framing this pronouncement, it will show how these factors have been institutionalized to create a system of racial oppression that targets young Black males to be both its victims and victimizers. As the result of this system, many young Black males are portrayed in …

The New Debt Peonage In The Era Of Mass Incarceration, Timothy Black, Lacey Caporale

Cultural Encounters, Conflicts, and Resolutions

In 1867, Congress passed legislation that forbid the practices of debt peonage. However, the law was circumvented after the period of Reconstruction in the south and debt peonage became central to the expansion of southern agriculture through sharecropping and industrialization through convict leasing, practices that forced debtors into new forms of coerced labor. Debt peonage was presumable ended in the 1940s by the Justice Department. But was it? The era of mass incarceration has institutionalized a new form of debt peonage through which racialized poverty is governed, mechanisms of social control are reconstituted, and freedom is circumscribed. In this paper, …

Eviction Mediation: An Intentional Conversation Followed By Five More, Noam Ebner, Sharon Press

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Adr: Disputing With A Modern Face, Or Bargaining For The Bargain Impaired?, Robert J. Condlin

Faculty Scholarship

The Alternative Dispute Resolution (ADR) movement might turn out to be one of the most important chapters in the history of the American judicial system. Or, it might not. In its most grandiose form, ADR turns disputing on its head, transferring control over outcome from third-party decision-makers to the disputants themselves, and defining disputing procedure in ad hoc, party-constructed guidelines tailored to the circumstances rather than fixed, generic, and categorical rules applicable uniformly in all situations. In its less grandiose form, ADR simply institutionalizes a system of multi-party bargaining in which third-party neutrals help disputants identify individual interests and find …

Glencore I: Adopting Stabilization Clauses In Investment Contracts And Seeking Non-Pecuniary Remedies In Investment Arbitration Still Makes Sense Glencore International A.G. And C.I. Prodeco S.A. V. Republic Of Colombia (Icsid, Case No. Arb/16/6), Gilberto A. Guerrero-Rocca

Faculty Publications

No abstract provided.

Introduction, Antonio Medina-Rivera, Lee F. Wilberschied Ph.D.

Cultural Encounters, Conflicts, and Resolutions

No abstract provided.

State Attribution: Whether State Ownership Of A Private Entity Is Important In Determining If The Actions Of That Entity Are Attributable To The State, Alejandro Solano Meardi

Arbitration Brief

No abstract provided.

Sovereign Wealth Funds And Investor-State Dispute Settlement: Examining Questions Of Icsid’S Jurisdiction And The Impact Of Investment-Treaty Arbitration, Muhammad Ussama

Arbitration Brief

The rate of foreign direct investment made by sovereign wealth funds has increased significantly during the past decade. Various concerns raised by host states— especially those located in the developed world—regarding the purposes and objectives of foreign investments made by these funds have led these states to take measures to protect themselves. Countries such as Canada, Germany, and the United States have issued new laws to address these concerns. Due to the broad discretion and flexibility that these laws grant to the governments of the host states, allegations of mistreatment by investors from the Global South, including sovereign wealth funds, …

Importance Of The Law Applicable To The Arbitration Agreement In International Commercial Arbitration, Marlon M. Meza-Salas

Arbitration Brief

This article analyzes the law applicable to the arbitration agreement in international commercial arbitration and some of the issues that could arise when the parties do not choose any particular law to govern their arbitration agreement. Parties frequently determine the substantive law that will govern the merit of the dispute and the rules applicable to the arbitration procedure. However, parties generally remain silent about the law that will govern the arbitration agreement itself, which could lead to unexpected or undesired effects before, during, and after arbitration, most of which could be avoided by simply selecting the law applicable to the …

Are Pre-Dispute Agreements To Arbitration Online Enforceable?, Caleb Gerbitz

Arbitration Brief

Arbitration is a favored adjudicatory mechanism because it is efficient, effective, and informal compared to judicial litigation. Scholar Thomas Carbonneau has noted that arbitration is “America’s optimal trial procedure.” The ubiquity of pre-dispute agreements to arbitrate in consumer contracts makes arbitration the dominant method to resolve such disputes. Yet, despite its hallmarks of accessibility and informality, arbitration’s reliance on face-to- face proceedings limits its benefits. Online dispute resolution (ODR) has grown in popularity among e-commerce retailers over the last two decades—and more recently within court systems.5 However, ODR’s rise has not meaningfully affected how pre-dispute agreements to arbitrate are drafted …

Letter From The Editor, Elena Z. Ritchie

Arbitration Brief

No abstract provided.

Panel I: Negotiating Arbitration Clauses, American University Business Law Review

American University Business Law Review

No abstract provided.

Predictability Of Arbitrators' Reliance On External Authority?, Ariana R. Levinson, Erin O'Hara O'Connor, Paige Marta Skiba

American University Law Review

No abstract provided.

The Indian Securities Fraud Class Action: Is Class Arbitration The Answer?, Brian T. Fitzpatrick, Randall S. Thomas

Northwestern Journal of International Law & Business

Abstract:

In 2013, India enacted one of the most robust private enforcement regimes for securities fraud violations in the world. Unlike in most other countries, Indian shareholders can now initiate securities fraud lawsuits on their own, represent all other defrauded shareholders unless those shareholders affirmatively opt out, and collect money damages for the entire class. The only thing missing is a better financing mechanism: unlike the United States, Canada, and Australia, India does not permit contingency fees, so class action lawyers cannot front the costs of litigation in exchange for collecting a percentage of what they recover. On the other …

Transition Without Transformation: The Legacy Of Sudan's Comprehensive Peace Agreement, Gene Carolan

Articles

In recent years, the transitional justice framework has expanded to include a broader notion of transformative justice, which strives for socio-political reform in addition to legal accountability. Over the course of two civil wars, Sudan has grappled with various attempts at transition and transformation with mixed results. Though the 2005 Comprehensive Peace Agreement brought an end to decades of North–South conflict, South Sudan’s subsequent descent into civil war has been characterised by a flawed transition and a lack of any immediate transformative potential. This paper analyses the Comprehensive Peace Agreement’s transitional mechanisms. In doing so, it explores how certain mechanisms …

Mechanisms For Consultation And Free, Prior And Informed Consent In The Negotiation Of Investment Contracts, Sam Szoke-Burke, Kaitlin Cordes

Northwestern Journal of International Law & Business

Investor-state contracts are regularly used in low- and middle-income countries to grant concessions for land-based and natural resource investments, such as agricultural, extractive industry, forestry, or renewable energy projects. These contracts are rarely negotiated in the presence of, or with meaningful input from, the people who risk being adversely affected by the project. This practice will usually risk violating requirements for meaningful consultation, and, where applicable, free, prior and informed consent (FPIC), and is particularly concerning when the investor-state contract gives the investor company rights to lands or resources over which local communities have legitimate claims.

This article explores how …

Revisiting The Enforceability Of Online Contracts: The Need For Unambiguous Assent To Inconspicuous Terms, Tom Mozingo

Seattle University Law Review

In determining the enforceability of online contracts, namely those formed from the use of smartphone applications, courts typically look to whether the contract terms were reasonably conspicuous or communicated to the consumer. With the rise of “browse-wrap” contracts, where terms are not directly communicated to the consumer or where the consumer is not required to click the equivalent of an “I agree” button clearly manifesting assent to the terms, courts have inconsistently applied the reasonable communicativeness standard to the detriment of consumers and application developers alike. This Comment will explore the development of browse-wrap contracting jurisprudence and the need to …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

2019 Camp Courthouse Colloquy United States Court Of Appeals For The Second Circuit: Leadership And Mediation, Colin Powell

Cardozo Journal of Conflict Resolution

A mediator serves many roles during the course of a mediation, including facilitator, listener, problem-solver, and agent of reality testing. Often understated is the mediator's role as a leader. To conduct an effective mediation, a mediator must be able to lead counsel and the parties on a path where they will be open to engage in frank risk assessment and consideration of options other than continued litigation. A mediator can learn how to be a better leader by studying leadership in others.

This year's Colloquy focuses on leadership and mediation. The powerful and insightful lessons on leadership drawn from General …

Rethinking The Role Of Courts In Resolving Family Conflicts, Jane C. Murphy

Cardozo Journal of Conflict Resolution

Family courts have been a central focus of the national problem-solving courts movement over the last three decades.' These courts have sought to replace the law and process-oriented adversary model with a more collaborative and interdisciplinary regime that de-emphasizes legal norms and focuses on therapeutic goals. While the new paradigm may be an improvement over its more adversarial predecessor, it presents significant risks for many who appear in these courts.2 A growing consensus is emerging among scholars, policy makers, and family law practitioners that the focus for much of family dispute resolution should shift from courts to the community.

This …