Dispute Resolution and Arbitration Commons^™

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Being There: Perils Of Disembodied Mediation, Robert Mcniff

Scholarly Works

The article examines the rise of online mediation, particularly accelerated by the COVID-19 pandemic, and critiques its limitations compared to in-person mediation. Drawing on 20th-century philosophical, psychological, and sociological thought, the analysis argues that online mediation diminishes the embodied, emotional, and intersubjective dimensions of human interaction, which are critical for empathy, moral agency, and meaningful dispute resolution. While online mediation offers convenience, it risks dehumanizing the process by reducing participants to disembodied images, thereby undermining the unique strengths of mediation as a holistic and empathetic alternative to legal adjudication.

What We Can Learn From The Notorious P&Id V. Nigeria, Emily Granja

Arbitration Brief

On October 23, 2023, England’s High Court of Justice ruled in favor of the Federal Republic of Nigeria in Nigeria v. Process & Industrial Developments Ltd. (P&ID). Reviewing the case, the High Court vacated P&ID’s $10 billion arbitral award after finding significant evidence of fraud and bribery. While the High Court’s decision marked a victory for Nigeria, it also shook the international arbitration system. This case exposed some of international arbitration’s flaws and generated new concerns regarding the confidentiality inherent in the arbitration process.

The Duality Of Lawyers As Escrow Agents, Douglas R. Richmond

Loyola University Chicago Law Journal

An escrow agent is someone who holds money or property in trust for others under agreed terms until a transaction is completed, or a dispute is resolved. Although institutional depositaries are widely available, clients frequently ask their lawyers to serve as escrow agents in connection with transactions in which the lawyer represents the client. In fact, lawyers are generally permitted to serve as escrow agents with respect to clients' transactions so long as all parties involved knowingly consent to the arrangement. This is true both under agency law and as a matter of lawyers' professional responsibility.

Unlike a lawyer who …

The Emerging Framework For The Recognition & Enforcement Of Annulled Arbitral Awards In U.S. Jurisprudence, Sarah Klim

Articles

The recognition and enforcement of foreign awards are governed almost universally by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"). However, this recognition and enforcement necessarily invokes national judicial power. The New York Convention does not devise a harmonized set of rules for courts to follow when faced with a request to recognize and enforce an annulled award. This has resulted in divergent approaches by national courts, which derive "not from any perversity of judges but from good faith variants in perspectives on how to construe the treaty."  This paper seeks …

Time-Pressured Negotiations, Hal Abramson

Scholarly Works

This Article considers how to negotiate when you do not have the time to use your best negotiation practices. No other article has considered what to do when in a time-pressured negotiation other than to advise you not to be trapped by a deadline. When you have no choice but to rush, this Article examines the choices that will reduce the risks posed by skipping any best practices.

This Article first considers the inherent risks of taking shortcuts and then describes a negotiation map suitable when not rushed as a guide for selecting shortcuts when rushed. After this introduction, the …

The Singapore Convention On Mediation: A New Framework For International Settlement Enforcement, Peter Phillips, Zachary Calo, Harold I. Abramson

Scholarly Works

The Singapore Convention on Mediation undeniably represents a landmark development in the field of international dispute resolution, providing a long-awaited and much-needed international enforcement framework that has the significant potential to substantially enhance the credibility, attractiveness, and overall effectiveness of mediated settlement agreements in cross border commercial disputes. By establishing a more predictable and reliable mechanism for the enforcement of these voluntarily reached agreements, the Convention directly addresses a critical gap that had long existed in the international dispute resolution landscape, particularly when compared to the well-established regime for the enforcement of international arbitral awards under the New York Convention. …

How Can You Turn Adversarial Attorneys Into Quasi-Mediators?, John Lande

Faculty Publications

This article grows out of an educational program sponsored by the St. Louis chapter of the Association of Attorney-Mediators, which functioned as a focus group. It describes mediators’ experiences with attorneys in mediation who were cooperative and adversarial.

It describes things that mediators can do to make adversarial attorneys behave as “quasi-mediators.” Attorneys acting as quasi-mediators help their clients realistically understand the other side’s perspectives. The attorneys also promote their clients’ interests by enlisting the mediators’ help and encouraging the other side to adjust their positions. Attorneys who sometimes act as quasi-mediators tailor their techniques to their clients’ preferences and …

Choosing To Use Good Language In The "Adr" Field, John Lande

Faculty Publications

On October 30, 2024, Debra Berman posted a message on a listserv encouraging colleagues to drop the word “alternative” from “ADR.” Her post quickly prompted 24 responses. This article summarizes the listserv discussion about the term “ADR,” and demonstrates serious misconceptions embodied in popular concepts of “BATNA” and “facilitative” and “evaluative” mediation as well as other problematic language that we frequently use.

Language is a shared resource that can enable people to understand each other accurately and to improve our ideas and techniques. This article describes the many ways that language has huge effects on people’s thoughts and actions, and …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Repeal The Federal Arbitration Act's "Arising Out Of" Requirement, Stephen J. Ware

American University Business Law Review

Suppose Pfizer and CVS agree to arbitrate not only any disputes that might arise out of their contract containing an arbitration agreement but also any disputes that might arise out of any of the many earlier contracts between these two large corporations. Or Apple and Samsung agree to arbitrate any patent infringement claims either has against the other for the next five years. Or FedEx and UPS agree to arbitrate any tort claims either has against the other due to any collision of their vehicles in the next ten years. Or members of the Walton (Walmart) family agree to arbitrate …

Section 4 -- Jury, Trial: A Misnomer In The Faa, Tracey B. Frisch

American University Business Law Review

The purpose of the Federal Arbitration Act (FAA), according to the Supreme Court, was not merely to reverse judicial hostility towards arbitration by placing agreements to arbitrate on the same footing as other contracts but to actively promote the use of arbitration on a national scale. It is not surprising then that most provisions of the FAA envision limited court intervention into the arbitration process.

The Problem Of Unreasoned Reasoned Awards And The Judicial Failure To Remedy It: Statutory And Rule Solutions, John B. Mcarthur, Mark Travis

American University Business Law Review

American arbitrators have long been choosing between two common forms of awards: "reasoned awards" and "standard awards" with no reasons enumerated. Yet neither arbitration rules nor statutes define "reasoned award." This lack of guidance has gotten arbitration in trouble and threatens its ability to satisfy users' needs.

Judging Judiciaries: How Sticky Defaults, Status Quo Bias, And The Sovereign Prerogative Influence The Perceived Legitimacy Of The New International Commercial Courts, S. I. Strong

Faculty Articles

Forum shopping is routinely criticized as contrary to procedural justice. However, recent years have seen an increasing number of jurisdictions engaged in the process of forum selling, in which countries actively seek to bring lucrative litigation business to their national judicial systems. One of the most common types of forum selling involves the creation of new international commercial courts designed to increase a nation’s competitiveness in the global litigation market.

Most studies of the new international commercial courts have focused on how procedural innovations adopted by different courts are likely to affect party choice. While useful, these analyses assume that …

Healing Communities With Police Divestment: Seeking Abolition Through Transformative Reform And Community-Government Collaboration, Jessica E. Gillson

Undergraduate Honors Theses

Concerns about the efficacy and sustainability of the U.S. carceral system have persisted throughout the country’s history, recently fueling renewed activism and bipartisan calls for reform. However, proposed solutions remain divisive. This thesis first defines the current status of our prison systems, then explores collaborative alternatives to incarceration and policing that support communities and break cycles of incarceration.

Focusing on partnerships among local governments, community organizations, justice-involved individuals, and law enforcement, this study examines holistic approaches to crime prevention, reentry, and reintegration. Using an interdisciplinary framework incorporating restorative justice, community resilience, and systems theory, it investigates how community-based strategies can …

The U.S. Supreme Court Decision In Smith V. Spizzirri: An Analysis Of Its Impact On Enforcing International Arbitration Agreements And Awards Falling Under The New York Convention In The United States, Charles E. Woode

Buffalo Law Review

This article provides a comprehensive analysis of the U.S. courts’ role in the interpretation, enforcement, and confirmation of international arbitration agreements and awards under the Federal Arbitration Act (FAA) and the New York Convention. It delves into the intricacies of FAA Chapters 1 and 2, which govern domestic and international arbitration respectively, and their interplay in shaping the arbitration landscape in the United States. Initially, this article addresses the significant circuit split regarding 9 U.S.C. § 3, which required clarification by the United States Supreme Court in Smith v. Spizzirri. The Court’s decision provided much-needed clarity on whether a district …

Restorative Justice In Legal Education, Lindsey Pointer, Aparna Polavarapu, Alanna Ojibway

Scholarly Works

No abstract provided.

International Arbitration And Conflicts Of Law: Three Hard Questions For Symeon, Peter B. Rutledge

Scholarly Works

The presence of a foreign element in a legal relationship inevitably introduces intricate choice-of-law issues. This postulate holds especially true in the context of international arbitration. Arbitration involves an exceptional degree of procedural freedom (including over the choice of the applicable law) and a distinctive conflict-of-laws regime that may be unbound from a particular national legal system. This article examines several choice-of-law issues arising in the context of international arbitration. In particular, Section I of this article addresses whether the United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards, otherwise known as the New York Convention, is selfexecuting …

Digital Transformation Of The Maritime Labour Law : Srems Complaints & Claims Legal, Digital Solution, Case Study Of Morocco, Rida El Missaoui

World Maritime University Dissertations

This Master’s dissertation investigates the strong need to reform and digitalize the mechanisms of monitoring and follow-up of the on-board compliance on seafarer’s rights and obligations through a legal-digital tool.

Dispute System Counter-Design, Andrew B. Mamo

FIU Law Review

This article introduces the concept of “counter-design” as a practice of challenging and reimagining dispute resolution systems from the ground up and from the inside out. Counter-design provides a critical response to traditional Dispute System Design (DSD) by positing that designs necessarily privilege certain perspectives and interests over others, even when designers follow best practices and ethical principles. Through practices of counter-design, individuals interact with dispute resolution systems, not merely to seek resolutions within the existing framework, but to actively challenge and reshape these systems from within. This concept underscores the dynamics of power, inclusion, and representation within DSD. Counter-design …

Defining Arbitration, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

The Federal Arbitration Act (FAA) does not define the term “arbitration,” the very process the one-hundred-year-old statute was enacted to promote. The absence of a definition has led to courts' inconsistent and unpredictable application of the FAA's regulatory benefits to agreements to resolve disputes in processes other than traditional, binding arbitration, such as appraisal, evaluation, and mediation. Additionally, with no clear definition as guidance, companies have inserted arbitration clauses into adhesive consumer and employment agreements that require “arbitration” of disputes but designate a process lacking hallmarks of due process. The Supreme Court even justified enforcing class action waivers in arbitration …

Asking The Right Questions About Legal Finance In United States Aggregate Dispute Resolution, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Third-party legal finance is one of the most controversial modern developments in civil justice, both in the United States and across the globe. It is particularly controversial when mentioned in the same breath as aggregate litigation. Current debate trains on a series of repeated questions: whether and how to ban litigation finance in aggregate litigation; whether the use of litigation finance should be disclosed in discovery; and whether litigation finance is allowed under various (and often ancient) legal doctrines. Obscured from view is what I believe to be the most fundamental question: What is the proper role of litigation finance …

Securities Arbitration Case Law Update 2024–2025 (July 2025), Elissa Germaine, Anthony Rivera

Faculty Publications

(Excerpt)

This article summarizes recent cases regarding the constitutionality of FINRA and leading arbitration cases that are of particular relevance to securities arbitration practitioners.

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 26, Iss. 3

Cardozo Journal of Conflict Resolution

No abstract provided.