Dispute Resolution and Arbitration Commons^™

A Meteorite And A Lost City: Mutually Beneficial Solutions Through Alternative Dispute Resolution, Sam Markowitz

Cardozo Journal of Conflict Resolution

This Note proceeds in a number of parts. Part I will present two case studies: First, the Willamette Meteorite and the agreement between the Grand Ronde Tribe and the AMNH; and second, the recent agreement between Peru and Yale University regarding artifacts from Machu Picchu. Part II will briefly explain and outline Alternative Dispute Resolution (ADR) and the methods through which successful resolution to disputes are achieved, specifically noting that in the last decade, cultural property disputes have been increasingly resolved through ADR. Part III will compare the agreements reached in both instances, proposing several reasons why these agreements worked …

Red With Envy: Why The Fashion Industry Should Embrace Adr As A Viable Solution To Resolving Trademark Disputes, Erica S. Schwartz

Cardozo Journal of Conflict Resolution

This Note proposes that based on the nature of trademark disputes in the fashion industry, discussed in more detail below, alternative dispute resolution may be a viable option to resolve these cases. These alternative methods allow parties to explore mutually beneficial solutions, while avoiding litigation and ensuring the vitality of their brand. This Note also proposes that, based on previously successful programs used by other organizations, the Council of Fashion Designers of America should develop an alternative dispute resolution program to resolve disputes within the fashion industry.

Part II outlines the history of fashion design protection and examines the current …

Arbitrating In The Ether Of Intent, Jarrod Wong

McGeorge School of Law Scholarly Articles

The U.S. Supreme Court's jurisprudence interpreting the Federal Arbitration Act (FAA) is incoherent in a respect that is fundamental yet not quite captured in existing legal literature. Specifically, in determining the core question of whether any particular dispute should be resolved by arbitration under the FAA, the Court has stubbornly relied on the concept of the parties' “intent” on the matter. “Intent,” however, is at once elusive and polymorphic. It is elusive because the parties will often not have considered whether the particular issue is arbitrable, much less who—court or arbitrator—should decide that preliminary question. It is polymorphic as rendered …

Public Input For City Budgeting Using E-Input, Face-To-Face Discussions, And Random Sample Surveys: The Willingness Of An American Community To Increase Taxes, Alan Tomkins, Rick D. Hoppe, Mitch Herian, Lisa M. Pytlikzillig, Tarik Abdel-Monem, Nancy Shank

Lisa PytlikZillig Publications

Regular public input into a city's budget is frequently associated with municipal budgeting in Brazilian cities, successes in public engagement that have been emulated around the world. American communities are adopting the practice to varying degrees. This paper will report on a five-year old public input program that is taking place in Lincoln, Nebraska, the capital city of a politically conservative state in the U.S. We discuss the processes we use to engage the public about the City's budget. The process includes regular online input as well as face-to-face, deliberative discussions. On occasions, random sample surveys also have been used. …

Using Principles And Policies Of Maritime Arbitration To Guide Responsible Parties In Oil Spill Claims Resolution, Lucy Martucci

Cardozo Journal of Conflict Resolution

This Note will: 1) provide an introduction to maritime arbitration, 2) discuss an example of a challenged arbitration award in the maritime context, 3) provide a background on OPA 90 and the National Pollution Funds Center ("NPFC"), 4) discuss the claims procedure under OPA 90, 5) discuss an example of a challenged NPFC decision, 6) discuss the problems with the GCCF, and 7) propose amendments to OPA 90. This Note will argue that in order to avoid the complex litigation that ultimately dissolved the GCCF, with the goals of cost efficiency, speed and fairness in mind, amendments to OPA 90 …

It's In The Game: Redefining The Transformative Use Test For The Video Game Arena, Joseph Gutmann

Cardozo Arts & Entertainment Law Journal

No abstract provided.

New York Convention And The American Federal System, The Symposium, Christopher R. Drahozal

Journal of Dispute Resolution

Whether state law can play a broader role in international arbitration matters in the United States depends on the extent to which the New York Convention and Chapter Two of the FAA (which implements the Convention) preempt state arbitration law. This article undertakes a preliminary analysis of that broad topic by examining several legal questions central to determining the preemptive effect of the New York Convention: (1) What effect, if any, does the federal-state clause (Article XI) have on U.S. obligations under the Convention? (2) To what extent does Chapter Two of the FAA apply in state court? and (3) …

If We Could, Then So Can You: The Seventh Circuit Resurrects Its Judge Versus Arbitrator Analogy To Reinstate A Repeat Arbitrator Note, Collin Koenig

Journal of Dispute Resolution

Arbitration clauses provide a method for companies to settle business disputes without expending the amount of time and resources required in judicial proceedings. When an arbitration clause is invoked, a neutral third party takes on the role of adjudicator, and the parties defer to the unbiased decision of that neutral. Sometimes what is "unbiased" becomes more uncertain when parties contract for the right to appoint their own arbitrators. Trustmark Ins. Co. v. John Hancock Life Ins. Co. stands for the principle that the Seventh Circuit will relax the impartiality standard to which they hold party-appointed arbitrators, especially compared to the …

To Kill A Mockingbird Mediator?: Assessing The Need For Third-Party Neutrals In Federal Bankruptcy Courts' Home Foreclosure Avoidance Programs, Lancelot L. Esteibar

Cardozo Journal of Conflict Resolution

This Note proceeds in four parts. First, Part I provides background information on the mortgage crisis, the loss mitigation processes, and current federal, state, and bankruptcy court programs aimed towards preventing foreclosure. Second, Part II describes the role of a mediator and the process of mediation. Third, Part III examines barriers to effective negotiation and why mediators can assist in overcoming those obstacles in the bankruptcy courts' loss mitigation programs. Finally, Part IV offers an alternative to the direct negotiation model prescribed by the S.D.N.Y., E.D.N.Y., and D.R.I. loss mitigation programs.

The Use Of Mediation As A Complement To The Integrated Domestic Violence Courts Of New York, Lauren K. Williams

Cardozo Journal of Conflict Resolution

In 2001, New York created the Integrated Domestic Violence Courts in order to more efficiently and more comprehensively address domestic violence cases. Domestic violence cases that were formerly spread out between two or three different courts can now be resolved in front of one judge. While this new court does minimize the hassle for the parties involved in the dispute and does eliminate inconsistent rulings by different judges in different courts, this new court structure does not address some problems that have existed with courts' approaches to resolving domestic violence. These problems include (1) that abusers can often afford to …

Abuse, Mediation And The Catholic Church: How Enforcing And Improving Existing Statutes Will Help Victims Recover, Jeffrey Pruzan

Cardozo Journal of Conflict Resolution

Allegations of sexual abuse at the hands of religious figures is an epidemic that has spread throughout the United States and abroad.' In the United States alone, U.S. bishops have reported receiving allegations of abuse committed by 6,115 Catholic priests, or 5.6 percent of the 109,694 active U.S. priests since 1950. The U.S. bishops also reported receiving allegations from 15,235 victims, or 2.6 victims per priest; however, this figure is universally acknowledged to be low. Some estimates put the number of victims in the United States at over 280,000.

Convergence And Divergence In International Dispute Resolution Symposium, Peter B. Rutledge

Scholarly Works

Drawing on the literature, two strands help to frame this paper. The first concerns why parties choose to arbitrate. The second strand is the literature documenting the efforts within the arbitration industry to encourage the use of arbitraments.

My goal in this paper is to bridge a gap between this second strand and the first, more theoretical strand. What is missing from both strands is a concrete, system-wide understanding about why parties opt for arbitration as opposed to other forms of dispute resolution. In other words, I seek both to give concrete understanding to the theoretical model articulated in the …

Ontario’S Administrative Tribunal Clusters: A Glass Half-Full Or Half-Empty For Administrative Justice?, Lorne Sossin, Jamie Baxter

Articles, Book Chapters, & Popular Press

Claimants who come to administrative tribunals in Canada, as elsewhere, expecting a convenient forum to resolve their problems may discover that institutional resources and expertise, their own knowledge of the system, and their statutory entitlements and legal rights are fragmented between agencies with diverse norms and mandates. The provincial government of Ontario in Canada has recently enacted a novel strategy called tribunal clustering to confront these challenges. This paper explores the structure and rationales behind Ontario’s new tribunal clusters and compares these with reform models in Australia and the United Kingdom. The authors argue that tribunal clusters offer a flexible …

Mediation And The Neocolonial Legal Order: Access To Justice And Self-Determination In The Philippines, Eduardo R.C. Capulong

Faculty Law Review Articles

In this article, the author examines how the process of U.S.-style alternative dispute resolution is unfolding in the Philippines, a former U.S. colony.

Drawing from representative case studies, Part I highlights emerging practices in the global South counter-hegemonic to the fundamentals of U.S.-style mediation.

Part II describes the Philippine community mediation experience, in particular the ideologies, structures, and practices of indigenous dispute resolution, the neighborhood justice system, and court-annexed mediation.

Part III discusses access to justice and self-determination as they relate specifically to community mediation in a postcolonial context.

Using qualitative research the author conducted in the Philippines in 2010, …

Advisory Adjudication, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring …

Sovereignty And The Promotion Of Peace In Non-International Armed Conflict, Anna Spain

Publications

No abstract provided.

The Role Of Equipoise In Family Law, Deborah Cantrell

Publications

Scholars reviewing family law over the last twenty years have described the field as having undergone a revolution. While true, both scholars and front-line family law advocates have failed to invent a satisfying end to the revolution. This Article takes up that challenge and offers a novel way forward, It identifies two translation challenges that have prevented the revolution from reaching its end. The first challenge is translating reform so that its benefits accrue equally across all kinds of participants--rich and poor, those with lawyers and those without. The second challenge is translating theory into on-the-ground practices useful to family …

The Moral Dimension Of Employment Dispute Resolution, Theodore J. St. Antoine

Articles

Dispute resolution may be viewed from the perspective of economics or negotiation or contract law or game theory or even military strategy. In this Article, I should like to consider employment dispute resolution in particular from the perspective of morality. I do not necessarily mean "morality" in any religious sense. By "morality" here I mean a concern about the inherent dignity and worth of every human being and the way each one should be treated by society. Some persons who best exemplify that attitude would style themselves secular humanists. Nonetheless, over the centuries religions across the globe have played a …

Thoughts On Arbitrator Selection: Why My Father Was (Usually) A Good Choice, Robert H. Smit

Faculty Scholarship

Many of the letters, cards and emails of condolence that I received after my father, Professor Hans Smit, passed away last year were from lawyers who had appeared before my father, serving as arbitrator, in international arbitrations. Most said very nice things about my father, some over the top: “worthy of canonization,” “a force of nature,” “Odysseus,” an “icon.” Others were kind but more restrained (coming perhaps from attorneys whose clients fared less well before my father): “creative,” “indomitable,” “fair but scary.” One of my favorites, from a non-native English speaker, was even more neutral, describing my father simply as …

Arbitration In The Roberts Supreme Court, George A. Bermann

Faculty Scholarship

The Supreme Court’s most recent set of arbitration law rulings — Stolt-Nielsen, S.A. v. AnimalFeeds Int’l, Rent-A-Center West v. Jackson, and AT&T Mobility v. Concepcion — merits all the attention it has been receiving. Taken collectively, the three decisions evidence the powerful commitment of a Supreme Court majority to arbitration as an alternative form of dispute resolution — a commitment so strong as to override important consumer welfare interests. At a minimum, the trilogy erects substantial barriers to the conduct of class arbitration, a form of arbitration that consumer advocates regard as essential to protecting consumer welfare.

In …

Arbitrability Trouble, George A. Bermann

Faculty Scholarship

The general notion of arbitrability is practically as old as arbitration itself, and yet it remains profoundly misunderstood, at least in U.S. arbitration law. For many – particularly outside the United States – arbitrability has a single and very precise meaning, signifying the legal capacity of a claim or dispute to be the subject of arbitration rather than litigation or, to borrow the language of the UNCITRAL Model Law and the New York Convention, signifying that a claim or dispute is “legally capable of being arbitrated.” By this understanding, a claim or dispute is “non-arbitrable” within a given legal system …

Employment Arbitration: Panel Discussion, Theodore J. St. Antoine

Other Publications

The rapid growth of arbitration in nonunion employment settings has provoked endless debate about its advantages and disadvantages for employers, employees, and unions. Often absent from the debate is systematic, reliable information on the extent of employment arbitration and arbitration outcomes. Professor Alexander Colvin of Cornell University has undertaken pioneering work that explores how employment arbitration is working in practice and its impact on the major players. After Professor Colvin presented his latest findings, a panel of leading arbitrators and advocates discussed the implications of his results for the continuing development of employment arbitration.

Arbitrating Trade Disputes (Who's The Boss?), Petros C. Mavroidis

Faculty Scholarship

World Trade Organization (“WTO”) dispute settlement has attracted a lot of interest over the years and there is a plethora of academic papers focusing on various aspects of this system. Paradoxically, there is little known about the identity of the WTO judges: since, at the end of the day, the WTO has evolved into the busiest forum litigating state-to-state disputes. There are many writings regarding the appointment process in other international tribunals. At the risk of doing injustice to many papers on this issue, we should mention the following works: Terris et al. look at various courts and especially those …

The Politics Of Class Action Arbitration: Jurisdictional Legitimacy And Vindication Of Contract Rights, William W. Park

Faculty Scholarship

Exactly one year apart, the U.S. Supreme Court decided two cases on “class arbitration” proceedings, one about international shipping and the other on consumer purchases of mobile telephones. Each decision inflicted damage on a claimant’s right to invoke collective action in arbitrations. Read together, the opinions serve as a prism through which to refract key elements in an increasingly politicized debate on the legal framework for arbitration, particularly within the United States.

La Jurisprudence Américaine En Matière De “Class Arbitration”: Entre Débat Politique Et Technique Juridique, William W. Park

Faculty Scholarship

Arbitration law implicates a delicate equilibrium between respect for the bargain to arbitrate and protection of basic procedural fairness. The role of law thus remains intimately linked to the rule of law, in the sense of an impartial tribunal, the right to be heard, and respect for the arbitrator's mission. The legitimacy of the process depends on how arbitrators balance the often competing goals of due process and efficiency, and whether the authorities that review awards can monitor procedural integrity without infringing an arbitrator's prerogatives on a dispute's substantive merits. Two U.S. Supreme Court decisions on class arbitration serve as …

Private Regulation Of Consumer Arbitration, Christopher R. Drahozal, Samantha Zyontz

Faculty Scholarship

Arbitration providers, such as the American Arbitration Association ("AAA') and JAMS, have promulgated due process protocols to regulate the fairness of consumer and employment arbitration agreements. A common criticism of these due process protocols, however, has been that they lack an enforcement mechanism. While arbitration providers state that they enforce the protocols by refusing to administer cases in which the arbitration agreement materially fails to comply with the relevant protocol, the private nature of arbitral dispute resolution makes it difficult to verify whether providers in fact refuse to administer such cases.

This Article reports the results of the first empirical …

Securing Natural Justice In Arbitration Proceedings, Austin Ignatius Pulle

Research Collection Yong Pung How School Of Law

The legitimacy and integrity of any system that adjudicates the rights and duties ofpersons would be evaluated by reference to the standards required by the principles of natural justice. Arbitration is becoming more popular as a system of dispute resolution because of the exponential increase of cross-border transactions that are a feature of globalization. Now arbitrations take place in countries that lack a well-developed arbitration culture. Courts in some of these countries have yet to develop a coherent body of law that clarifies and gives effect to the principles of natural justice. Moreover, important values protected by natural justice principles …

The Mediation Export Explosion And The ‘Hidden’ Drive Towards Harmonisation, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the importance of harmonising the law and practice of mediation internationally is discussed.

A Trilogy Of "Difficult And Complex" Arbitration Issues In 2012, Darius Chan

Research Collection Yong Pung How School Of Law

At the end of 2011, the Singapore High Court in Re David Joseph QC [2011] SGHC 262 (per VK Rajah JA) permitted the admission of an English Queen’s Counsel, David Joseph QC, to represent eight entities of the Astro Group, a Malaysian broadcasting and media entity, in proceedings arising from an arbitration with three subsidiaries of Indonesia’s Lippo Group. Under Singapore’s current statutory scheme, the court may admit QCs on an ad hoc basis if a matter contains issues of fact or law of “sufficient difficulty and complexity”, and if the circumstances of the case warrant it. The High Court …

'Domesticating' The New York Convention: The Impact Of The Federal Arbitration Act, George A. Bermann

Faculty Scholarship

Much as one may try to universalize and even ‘de-nationalize’ international commercial arbitration – whether through Conventions, uniform or model laws or soft law – the phenomenon remains profoundly affected by national law and policy. That is indeed very much one of the leitmotifs of this book.

The incongruities – big and small – between domestic and international arbitration regimes typically present themselves on a purely ad hoc basis; that is to say, in specific and often isolated contexts, as when a particular case in a national court produces a result that looks anomalous from the point of view of …