Dispute Resolution and Arbitration Commons^™

Moving From Mandatory: Making Adr Voluntary In New York Commercial Division Cases, Ari Davis

Cardozo Journal of Conflict Resolution

Due to its success during the last thirteen years, New York's Commercial Division in the state's Supreme Court has become the model for other states and countries seeking to establish a commercial division for their court systems. Before 1993, New York's state court system had its dockets clogged with commercial cases. Judges who heard commercial litigation cases often did not have the expertise or resources to handle them well or give them proper attention. As a result, New York businesses turned to Delaware's Chancery Court, federal courts, and private dispute resolution to resolve their disputes and avoid the New York …

Helping Those Who Are Helping Us: Sarbanes-Oxley Whistleblower Protection And Its Interplay With Arbitration, Adam Fisher

Cardozo Journal of Conflict Resolution

The accounting profession took a major blow to its credibility in 2002 when numerous scandals surfaced on the front pages of newspapers seemingly everyday. The most notable stories told of two women who, despite the enormous pressure and harassment they knew they would face, came forward to reveal the ugly truth behind the facades of America's corporate skyscrapers. Cynthia Cooper and Sherron Watkins, employees at WorldCom and Enron respectively, blew the whistle on major accounting frauds at these companies. Their employers' retaliation was harsh and swift, revealing the truth about how todays' corporate juggernauts operate.

The Road Less Traveled: Using Adr To Help Reform Firsttime Juvenile Offenders, Maggie Gertz

Cardozo Journal of Conflict Resolution

Section I of this Note details the history of the juvenile justice system, making specific reference to the various developments in juvenile justice policy, concluding with a discussion of the conflicts involved in juvenile offending. Section II examines ADR techniques that have been used in the juvenile justice field, with some success, as an alternative to further prosecution, incarceration or other punishment, highlighting Victim-Offender Mediation and Family Group Conferencing. In Section III, I analyze why ADR techniques are an ideal solution to the ills of the current system, and how these methods meet many of the goals of the traditional …

An Unfair Advantage: Comparing The International Court Of Justice To A Form Of Adr And Why It Was Inappropriate For The Court To Issue An Advisory Opinion In The Case Of Israel's Separation Fence, Mimi Trenk

Cardozo Journal of Conflict Resolution

This Note will begin with a concise background of the ArabIsraeli conflict. It will then explain the three arguments presented to the Court as to why it should have declined to exercise jurisdiction and the Court's response. It will explore the similarities of non-binding arbitration, as a form of alternative dispute resolution, and the Advisory Opinion. It will then examine whether, in the interests of justice, it was appropriate for the Court to issue the opinion, even though it is considered to be non-binding. This Note will examine the Israeli Supreme Court as the proper forum to enforce the rights …

Transparency In International Commercial Arbitration, Catherine A. Rogers

Faculty Scholarship

Scholars have long been making the case for expanding transparency in the international commercial arbitration system, but recently these proposals have taken on a greater sense of urgency and an apparent willingness to forcibly impose transparency reforms on unwilling parties. These new transparency advocates exhort the general public's stakehold in many issues being arbitrated, which they contend necessitates transparency reforms, including compulsory publication of international commercial arbitration awards.

In this symposium essay, I begin by developing a definition of transparency in the adjucatory setting, and conceptually distinguishing from other concepts, like "public access" and "disclosure," which are often improperly treated …

Investor-State Dispute Settlement Between Developed Countries, William S. Dodge

Vanderbilt Journal of Transnational Law

Free trade agreements between developed countries now frequently contain provisions on investor protection, but the resolution of disputes remains problematic. Chapter 11 of the North American Free Trade Agreement (NAFTA) allows investors to bring direct claims against a host state before an international tribunal without exhausting domestic remedies. This has resulted in a number of claims against the United States by Canadian investors and against Canada by U.S.investors. Chapter 11 of the Australia-United States Free Trade Agreement (AUSFTA) does not permit direct claims, relying instead on a state-to-state dispute resolution mechanism.

This Article reviews the evolution of investment-dispute resolution from …

Public Access To Information In Civil Litigation Vs. Litigant's Demand For Privacy: Is The Vanishing Trial An Avoidable Consequence, Dennis J. Drasco

Journal of Dispute Resolution

Recently, the legal and academic communities have been studying the phenomenon of the "vanishing trial." The phenomenon is an observation of the fact that the American court system is experiencing a trend of shrinking trial dockets. At least one scholar has partially attributed the decline in trials to the value placed upon settlement rather than adjudication within our justice system. Those competing values have spawned a debate regarding the secrecy and confidentiality characteristic of settlements versus public access to information in civil litigation. Jurisdictions that have addressed the issue have noted the complexities involved in regard to the factors to …

Designer Trials, Elizabeth Thornburg

Journal of Dispute Resolution

This article is a thought experiment, or maybe a nightmare, about the intersection of freedom of contract and the trials that have not vanished. Could contracting parties effectively agree in advance of a dispute that any litigation of the case will comply with certain rules? Would such an agreement be enforced even in a contract of adhesion? If so, parties with sufficient bargaining leverage could design away many of the characteristics of litigation that they find unappealing without the need to resort to private processes. The result: a designer trial with the procedural deck stacked in favor of the party …

Parties To International Commercial Arbitration Agreements Beware: Bankruptcy Trumps Supreme Court Precedent Favoring Arbitration Of International Disputes, Lindsay Biesterfeld

Journal of Dispute Resolution

Phillips v. Congelton (In re White Mountain Mining Co.), presents a heightened version of the conflict between the general policy favoring enforcement of arbitration agreements and the policy favoring resolution of bankruptcy-related claims in the bankruptcy court proceedings as the case involves a dispute over the enforcement of an international agreement to arbitrate a claim that is a "core" bankruptcy proceeding. In Phillips, the Fourth Circuit analyzed the underlying purposes of both the bankruptcy code and the federal arbitration statutes, and resolved the conflicting purposes of the two by giving greater deference to the policy favoring resolution of bankruptcy-related claims …

Mandatory Mediation: The Extra Dose Needed To Cure The Medical Malpractice Crisis, Florence Yee

Cardozo Journal of Conflict Resolution

This Note discusses the advantages and drawbacks of mandating participation in mediation in medical malpractice disputes. Part II of this Note reviews the extent of the current medical malpractice crisis. Part III examines litigation as the traditional means of resolving medical malpractice disputes and suggests that litigation's weaknesses eclipse any of its strengths. Part IV evaluates the lingering challenges to arbitration, accounting for its ineffectiveness in resolving medical malpractice disputes. Part V analyzes why mediation may be the better alternative to both litigation and arbitration in resolving such disputes, and how its hurdles can be best surmounted by mandatory mediation. …

A Modest Proposal To Streamline Fair Use Determinations, David Nimmer

Cardozo Arts & Entertainment Law Journal

No abstract provided.

No Longer Just Company Men: The Flexible Workforce And Employment Discrimination, Review Essay On 'From Widgets To Digits Employment Regulation For The Changing Workplace', By Katherine V.W. Stone (2004), Miriam A. Cherry

All Faculty Scholarship

In her new book, From Widgets to Digits, Professor Katherine V.W. Stone reviews and analyzes the dramatic changes, both technological and demographic, that have transformed work in America during the last thirty years. The book broadly documents the shift from an economy that primarily relies on the production and consumption of goods to one in which learning and the transmittal of knowledge is central to the creation of wealth. Professor Stone describes how in the past, workers may have expected job security and long-term employment, but that recent economic, social, and technological change have led to a more temporary and …

It's About The Relationship: Collaborative Law In The Employment Context, Marcia L. Mccormick

All Faculty Scholarship

Work is central to American life and drives us in fundamental ways. And the workplace, as a result, dominates our lives. We are spending ever greater amounts of time in the workplace and less time in civic and social engagements. As a consequence, our relationships at work have become so significant that they are nearly as important to us as our family relationships. In fact, the employment relationship is similar to the family relationship in the emotional support from coworkers it can provide and in the financial support it provides. Because the employment relationship is so common and psychologically so …

Climate Change And The Use Of The Dispute Settlement Regime Of The Law Of The Sea Convention, Meinhard Doelle

Articles, Book Chapters, & Popular Press

This article explores the connection between obligations to reduce greenhouse gas (GHG) emissions under the climate change regime and obligations to protect the marine environment under the United Nations Convention on the Law of the Sea (UNCLOS). Within the context of the state of the science on the links between climate change and the marine environment, the article considers whether the emission of greenhouse gases as a result of human activity constitutes a violation of various obligations under the UNCLOS. Having identified a number of possible violations, the article proceeds to consider the application of the binding dispute settlement process …

Domestic Violence In Ghana: The Open Secret, Nancy Chi Cantalupo, Lisa Vollendorf Martin, Kay Pak, Sue Shin

Georgetown Law Faculty Publications and Other Works

This report discusses the findings of a Georgetown Law International Women’s Human Rights Clinic fact-finding team that traveled to Ghana, Africa in March 2003 to investigate domestic violence. The report reviews the contours of the domestic violence problem in Ghana and outlines the ways in which Ghanaian law and procedure was insufficiently addressing the problem at the time. Its chief findings include that the Ghanaian laws existing in 2003 inadequately punished perpetrators and protected victims of domestic violence and that court and police enforcement of the existing law was lacking, including because the government was allowing the removal of domestic …

Demand For A Jury Trial And The Selection Of Cases For Trial, Joni Hersch

Vanderbilt Law School Faculty Publications

This paper uses a unique data set to examine how parties in civil litigation choose whether to demand a jury trial or to waive this right and whether trial forum influences the probability of trial versus settlement. Plaintiffs are more likely to demand trial by jury when juries are relativety more favorable to plaintiffs in similar cases and jury trials are relatively less costly than bench trials. Cases in which jury trials are demanded are 5.5 percentage points more ikely to settle without a trial than cases in which jury trials are waived. This differential settlement rate by potential trial …

How To Deal With Multi-Party Nominations Of Arbitrators In International Commercial Arbitration - A Comparative Study Of Appointment Procedures With Emphasis On U.S.-European Commerce Between Private Entities, Marie-Beatrix Tupy

LLM Theses and Essays

The nomination procedure for the Arbitral Tribunal in commercial arbitration is one of the crucial points in the arbitral procedure. Parties have to have in mind the provisions of the New York Convention regarding the setting aside of an award in case of a failure during the nomination procedure of the tribunal. Besides from the famous Dutco case on multi-party arbitrations and their nomination procedures have received highest interest within the international arbitral world. As the thesis will comparatively show, all major arbitral institutions have updated their Rules, countries have even rendered new legislation with respect to the nomination procedure …

Teaching Adr In The Labor Field In China, Theodore J. St. Antoine

Articles

My first visit to China, in 1994, was purely as a tourist, and came about almost by accident. In late September of that year I attended the XIV World Congress of the International Society for Labor Law and Social Security in Seoul, South Korea. In the second week of October I was scheduled to begin teaching a one-term course in American law as a visiting professor at Cambridge University in England. Despite my hazy notions of geography, I realized it made no sense to return to the United States for the intervening week. The obvious solution was to continue flying …

Improving The Construction And Litigation Resolution Process: The 2005 Amendments To The Washington Condominium Act Are A Win-Win For Homeowners And Developers, Mark F. O'Donnell, David E. Chawes

Seattle University Law Review

On August 1, 2005, significant amendments to the Washington Condominium Act (WCA) became effective. These amendments were intended to substantially reduce water infiltration in multiunit residential buildings and to simplify the condominium construction dispute resolution process. The heart of the amendments is the implementation of alternative dispute resolution (ADR) procedures, as well as fee-shiftingprovisions which require the non-prevailing party to pay the attorney fees and costs of the prevailing party. A decade of lawsuits brought under the WCA by condominium owners associations against builders and developers, and in turn by builders against subcontractors, alleging defects in the ability of the …

The Naa Agora: What's Right With Labor Arbitration…And How To Keep It That Way., Theodore J. St. Antoine

Other Publications

Now it’s time for all of us to step into the Agora, the National Academy’s marketplace of ideas. Leading the discussion this morning and introducing the members of the First Circle will be Professor Roger Abrams. Roger’s not on the stage right now, for reasons that will become obvious in just a moment. By way of introduction, Roger, of course, is a National Academy member. He is the Richardson Professor of Law at Northeastern University Law School; and currently he is a visiting Professor of Law at Harvard Law School. Roger is the former dean of Northeastern Law, of Rutgers …

The Procedural Soft Law Of International Arbitration, William W. Park

Faculty Scholarship

The conference organizers set me the daunting task of exploring arbitration's “non-national instruments,” which is to say the guidelines of professional groups and non-governmental organizations related to evidence, conflicts of interest, ethics and the organization of arbitral proceedings. Frequently these procedural standards build on the lore of international dispute resolution as memorialized in articles, treatises and learned symposium papers. These guidelines represent what might be called “soft law,” in distinction to the harder norms imposed by arbitration statutes and treaties, as well as the procedural framework adopted by the parties through choice of pre-established arbitration rules.

The growth of procedural …

After Basic Mindfulness Mediation: External Mindfulness, Emotional Truthfulness, And Lie Detection In Dispute Resolution, Clark Freshman

Faculty Scholarship

No abstract provided.

Origin, Scope, And Irrevocability Of The Manifest Disregard Of The Law Doctrine: Second Circuit Views, Christian Turner, Joshua Ratner

Scholarly Works

After arbitration has occurred, parties may seek judicial enforcement of the arbitral award, converting the private determination into an enforceable judgment. Parties that did not prevail in the arbitration may, at the same time, seek to have the arbitral award vacated. This article concerns the doctrine that permits courts to vacate an arbitral award when the arbitrators “manifestly disregarded” the law, focusing on recent developments in the Second Circuit. Despite the exceedingly deferential scope of this doctrine, the Second Circuit has actually vacated a handful of arbitrations on grounds of manifest disregard, and the doctrine is routinely raised by litigants. …

The Effect Of Forum Selection Clauses On District Courts’ Authority To Compel Arbitration, Thomas V. Burch, John W. Hinchey

Scholarly Works

This is a short piece written for the AAA's Dispute Resolution Journal on two competing provisions in Section 4 of the FAA. One provision tells district courts to compel arbitration in accordance with the parties' agreement, including any forum selection clause. The other says that the court can compel arbitration only within its own territory. This, of course, creates a problem when the forum selection clause calls for arbitration in another jurisdiction. This short article addresses the conflict, showing how courts tend to rule on the issue (as of 2006).

Interview With Michael Leathes, Nadja Alexander

Research Collection Yong Pung How School Of Law

Alexander: Can you describe your professional role and how it relates to international mediation?Leathes: I have been an in-house counsel for most of my 36-year career, including general counsel of Pfizer International and of International Distillers & Vintners and general manager of BAT’s intellectual propertycompany. In all these roles I have been responsible for litigation portfolios internationally—in total, thousands of cases. Before I figured out a better way, I’m certain that I must have been responsible for about as many losses as wins. Then, in the late 80s, I discovered mediation…A: And what happened?L: Together with the teams of people …

Mediating In The Shadow Of Australian Law: Structural Influences On Adr, Nadja Alexander

Research Collection Yong Pung How School Of Law

Mediation has grown rapidly in many Anglophone jurisdictions such as USA, Australia, Canada, New Zealand and England. The current state of mediation practice in many of these jurisdictions can be traced back to the establishment of community justice centres in the 1970s and 1980s. Mediation is practised in the private sector as well as in a wide range of court-referred programs. In many common law jurisdictions mediation is no longer a form of alternative dispute resolution, it has become primary dispute resolution.

Your Pace Or Mine: Culture, Time And Negotiation, Ian Macduff

Research Collection Yong Pung How School Of Law

This article explores the impact that different perceptions of time may have on cross-cultural negotiations. Beyond obvious issues of punctuality and timekeeping, differences may occur in the value placed on the uses of time and the priorities given to past, present, or future orientations. The role of time in negotiations involves two key dimensions: differing perceptions and values of time, and the management of time. Both dimensions, the author suggests, need to be on the negotiation table.

Selecting Mediators And Representing Clients In Cross-Cultural Disputes, Harold Abramson

Scholarly Works

Even an adept negotiator can be baffled by cultural differences. When a negotiation reaches an impasse because of an unfamiliar cultural interest or a miscommunication between the parties due to different styles of communicating, negotiating, or decision-making, the negotiator might find it helpful to enlist assistance from a culturally-trained and culturally-appropriate mediator. This Article considers how such a third party can help you, as a negotiator, bridge cultural differences. It considers when to seek aid from a mediator, what the credentials of the mediator ought to be, and the impact of the mediator's approach on the way you represent your …

Special Methods And Tools For Educating The Transnational Lawyer, Duncan Bentley, John Wade

Journal of Legal Education

No abstract provided.

The Shari'a Factor In International Commercial Arbitration, Faisal M. Kutty

ExpressO

The world has witnessed a phenomenal growth in commercial disputes transcending national borders due to our increasingly interrelated and globalized world economy. In addition to issues in interpretation of commercial agreements and practices, differences in custom, language, culture and religion will continue to fuel conflicts and disagreements between commercial players. Over the last few decades there have been growing commercial interaction between Western companies and their Middle Eastern counterparts. Given this interaction and the great geo-political and economic importance of this region, it is imperative that Western lawyers and dispute resolution professionals have a reasonable grasp of the general principles …