Dispute Resolution and Arbitration Commons^™

Re-Calibration Of Curial Intervention In Public Policy Challenges Against Arbitral Awards, Darius Chan, Elias Ngai Hum Khong

Research Collection Yong Pung How School Of Law

When an award debtor challenges an award on public policy grounds, usually the principle of finality prevails, and courts will consider the award debtor bound by the decision of the tribunal. However, because public policy has implications beyond the disputing parties themselves, some courts consider themselves justified in reviewing the award. There is therefore a tension between finality versus the court’s duty to stand as the guardian of public policy. Whether a review of an award should be allowed under this ground, and if so, the extent of permissible review, differs across various jurisdictions. For instance, common law authorities have …

Cjcr Publishes Volume 25, Issue 2 (Symposium 2023), Jane Perov

Cardozo Journal of Conflict Resolution (CJCR) Blog

The Cardozo Journal of Conflict Resolution—the country’s preeminent legal journal of arbitration, negotiation, mediation, settlement, and restorative justice—today published the web edition of Volume 25, Issue 2 (Symposium 2023).

The print edition of the issue has also been released. This post was originally published on the Cardozo Journal of Conflict Resolution website on May 29, 2024.

California Settled The No-Fault Divorce Question Decades Ago. Why Is It Back In The News?, Patt Morrison, Michael J. Higdon

Tennessee Law in the News

Interim Associate Dean Michael Higdon was quoted extensively in a recent article in the L.A. Times entitled “California Settled the No-Fault Divorce Question Decades Ago: Why is it Back in the News?” The article focuses on criticisms some politicians have recently levied against the availability of no-fault divorce, including calls to abolish the practice.

Convergence And Divergence: Comparative Analysis Of Procedural Rule Changes Of The Hong Kong And Singapore International Arbitration Centers Within The Framework Of Neo-Institutional Theory, Phillip Hoang Tran

Dissertations

International commercial arbitration (ICA) plays an essential role in resolving disputes between companies engaged in complex, cross-border business transactions. It offers an efficient, neutral, and enforceable mechanism for resolving disputes across different legal and cultural backgrounds. ICA is generally conducted at international arbitration centers located throughout the world. According to the extant literature, there is convergence of procedural rules among these centers. Sabharwal and Zaman (2014), for example, claim increasing convergence of procedural rules among all the major arbitration centers. Similarly, Sharma (2021) proposes that this convergence helps build the international arbitration system. However, there is a near absence of …

Breaking Ground: Understanding Indigenous Mining Disputes Through Negotiation Theory, Shaadie Ali

Minnesota Journal of Law, Science & Technology

No abstract provided.

Governance And Islam In East Africa: Muslims And The State In Kenya And Tanzania, Farouk Topan, Kai Kresse, Erin E. Stiles, Hassan Mwakimako

Exploring Muslim Contexts

Explores the relationship between Muslim communities and the State in East Africa in political, institutional and legal contexts

• Focuses on the relationship between Muslims and the State in Kenya and Tanzania
• Asks which factors, both within and outside the Muslim community, shape and affect this relationship in contemporary times
• Presents 13 case studies exploring governance issues within and across the categories of politics, institutions and law in Kenya and Tanzania
• Identifies cross-cutting issues of governance and Muslim communities which are relevant beyond East Africa

Recent studies of Muslims in Kenya and Tanzania have tended either to examine governance of Muslims …

Less Litigation, More Business Purpose: Leveraging Dispute Prevention To Preserve Business Relationships, Joan Stearns Johnsen

UF Law Faculty Publications

Strong interorganizational relationships play an essential role in business relationships. Soft skills associated with negotiation and communication are key to dealing with disagreements in these relationships. However, many companies do not invest in these aspects of their business relationships until conflicts arise. Dispute resolution provides helpful processes for managing these disputes, but companies can avoid conflict before it arises by investing in dispute prevention.

Dispute prevention represents a change in the existing paradigm, yet it poses numerous benefits. By implementing a dispute prevention mechanism, such as a Standing Neutral, companies can invest in strong interorganizational relationships and improve their ability …

Choosing Sides: On The Manipulation Of Civil Litigation, Yotam Kaplan, Ittai Paldor

Vanderbilt Law Review

Our litigation system is broken. Scholars have long warned that professional litigants, such as debt-collecting firms, insurance companies, and commercial landlords, enjoy immense and unfair advantages over private individuals. What has gone unnoticed is professional litigants’ ability to manipulate their litigatory position—that is, to choose whether they will litigate as plaintiffs or defendants. Extant literature assumes that the parties’ litigatory positions are determined by the substance of the dispute: the party seeking a remedy is the plaintiff, and the party objecting to the award of a remedy is the defendant. We show that, in reality, professional litigants have both the …

American Handling Of Holocaust Property Takings: What We Can Learn From International Policies, Matthew Franks

Brooklyn Journal of International Law

The Supreme Court decision in Federal Republic of Germany v. Philipp and US enforcement of the Foreign Sovereign Immunities Act have made it extremely difficult for Holocaust survivors and their families to recover lost and stolen property from during the World War II era. Other countries, such as the United Kingdom, France, and Germany, have had great success in this arena through various methods. This Note explores the ways in which US jurisprudence continues to make recovery inaccessible, while highlighting the specific processes these few European countries have created to foster recovery. Finally, this Note argues that the US must …

Labor Enforcement In The Us-Mexico-Canada Agreement: Design, Motivation, And Reality, Inu Manak, Alfredo Carrillo Obregon

Brooklyn Journal of International Law

The United States-Mexico-Canada Agreement (USMCA) includes a novel feature in the agreement’s dispute settlement provisions: the Rapid Response Labor Mechanism (RRM). The stated purpose of the RRM is to ensure the remediation of a denial of collective bargaining rights for workers in certain covered facilities. Its novelty is that it does not follow the typical labor claims processes as found in previous trade agreements, nor is it structured like traditional state-to-state dispute settlement. Primarily, it provides a means to take swift action against a facility when the complainant deems that a denial of specific labor rights is taking place. Essentially, …

Generative Interpretation, Yonathan A. Arbel, David A. Hoffman

Articles

We introduce generative interpretation, a new approach to estimating contractual meaning using large language models. As AI triumphalism is the order of the day, we proceed by way of grounded case studies, each illustrating the capabilities of these novel tools in distinct ways. Taking well-known contracts opinions, and sourcing the actual agreements that they adjudicated, we show that AI models can help factfinders ascertain ordinary meaning in context, quantify ambiguity, and fill gaps in parties' agreements. We also illustrate how models can calculate the probative value of individual pieces of extrinsic evidence.

After offering best practices for the use of …

Adr And Capital One’S Acquisition Of Discover, Yakov Schwalb

Cardozo Journal of Conflict Resolution (CJCR) Blog

On February 19th Capital One announced that it was buying Discover for $35.3 billion. If approved, this acquisition would make Capital One the United States’ sixth largest bank and its third largest credit-card issuer. However, many have voiced concerns with this deal. Senators from both sides of the aisle have called on the Federal Trade Commission (“FTC”) to block this transaction as a violation of antitrust law. Senator Hawley from Missouri said that “[i]f consummated, this merger will create a new juggernaut in the credit card market, with unprecedented powers to extort American consumers," while Senator Elizabeth Warren of Massachusetts …

Small Print, Big Impact: Examining The Effects Of Forced Arbitration, Myriam E. Gilles

Testimony

Testimony Before the U.S. Senate Committee on the Judiciary

Using Adr To Help Resolve Nyc’S Eviction Crisis Since The Termination Of The Tenant Safe Harbor Act, Jacob Siri

Cardozo Journal of Conflict Resolution (CJCR) Blog

In a post-pandemic world, describing New York City Housing Court as “time-consuming” would be a drastic understatement. New York City faces a staggering backlog of at least 70,000 eviction cases, causing some to linger for more than four years. The backlog is due to a shortage of judges, pandemic-instituted moratoria, an influx of new cases, and a myriad of other reasons. New York City’s Tenant Safe Harbor Act was introduced at the start of the pandemic on March 7th, 2020, but has since been terminated on January 15th, 2022. The act protected tenants who could not pay rent due to …

Kukin Program Newsletter – Spring 2024, Kukin Program For Conflict Resolution

Kukin Program Newsletters

The Kukin Program Newsletter – Spring 2024 highlights recent achievements, events, and developments in Cardozo Law School’s Alternative Dispute Resolution (ADR) program. Key features include student accomplishments in national ADR competitions, faculty contributions to international conferences, and updates on new courses like Dispute Systems Design and International Investment Arbitration. The issue also covers the Cardozo Divorce Mediation Clinic’s 13th anniversary, faculty spotlights, and the Cardozo Dispute Resolution Society’s inaugural Arbitration Day. This newsletter reflects the Kukin Program's commitment to advancing ADR education and supporting students in impactful, real-world learning experiences.

Alternative Dispute Resolution In Montana: A Catalog Of The Local Rules In Montana District Courts, Brianna Anderson, Brock Flynn

Student Scholarship

A catalog of the Local ADR Rules for the Montana Judicial District Courts, including rules about settlement conferences, mediation, and informal domestic relations trials.

Real Practice Systems Annotated Bibliography, John Lande

Faculty Publications

Real Practice Systems (RPS) theory holds that practitioners’ practice systems are based on their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and the cases in their work. RPS analysis can be used in many dispute resolution roles such as mediator, advocate in mediation, negotiator, and litigator generally. In mediation, practitioners develop categories of cases, parties, and behavior patterns that lead them to design routine procedures and strategies for dealing with recurring challenges before, during, and after mediation sessions.

RPS theory is the culmination of much of the work in my scholarly career. The bibliography …

What Is The Price Of Withdrawing From Investor-State Dispute Settlement Provisions In An Era Of Climate Conscious Policy? Comparing Latin America's Rejection Of Foreign Investor Control To The Fallout From The Energy Charter Treaty, Carrie Swiggum

Student Scholarship

This article examines Investor-State Dispute Settlements criticisms and intended benefits as it comes up in public law issues such as the Energy Charter Treaty. The treaty is the world’s largest multilateral treaty, with about 50 member countries, and the most litigated, with most cases decided by arbitration. There is criticism against an inability to modernize the treaty due to concerns regarding climate change as well as criticism against the investor-state dispute settlement system itself, because of arbitration’s secrecy and lack of public involvement. This article argues that countries should leave unilaterally as they have begun to do, avoiding the regulatory …

Application Of Singapore's New Rules On Service Out Of Jurisdiction: Three Arrows Capital And Nw Corp, Adeline Chong

Research Collection Yong Pung How School Of Law

No abstract provided.

Constitutional Supremacy, Inherent Powers, And Orders That Damages Or Costs Be Paid In Instalments: Tan Meow Hiang V Ong Kay Yong [2023] Sghc 286, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

The General Division of the High Court of Singapore stated (obiter) in Tan Meow Hiang v Ong Kay Yong that it does not have a general power to order that damages or costs be paid in instalments. It reasoned that any such power must have been impliedly restricted by legislation. So instalment orders can only be made (a) by certain subordinate courts; (b) by the General Division on appeal; (c) by the General Division at first instance in personal injury cases. In response, this note aims to advance the conversation on the law on instalment orders and what the Constitution …

Conceptualising State-Centric Mediation: An Analysis Of China's Foreign Investment Complaints Mechanism, Mark Mclaughlin

Research Collection Yong Pung How School Of Law

This article argues that China's foreign investor complaints system constitutes 'state-centric investment mediation'. The Rules on Handling Complaints of Foreign-Invested Enterprises, which entered into force on 1 October 2020, place a state agency in the position of facilitating negotiations between a foreign investor and the agency being complained against. The prospects for this complaints system depend on how the state-as-mediator dynamic is perceived by foreign investors. To this end, it will be argued that settlement agreements reached pursuant to this system may be enforceable under the Singapore Convention on Mediation in certain circumstances. Investors and government entities operating similar systems …

Importance Of Mediation In The Workplace, Cardozo Labor And Employment Law Society

2023–2024 Flyers

No abstract provided.

Why Greco-Turkish Conflict Needs American Intervention: A Meaningful Mediator, Lemonia Tzanides

Cardozo Journal of Conflict Resolution (CJCR) Blog

Tensions between the Greek and Turkish governments have soared over territorial claims in the Aegean, chiefly concerning the delimitation of territorial waters. The conflict arose on January 20th, 2021, when the Greek parliament nearly unanimously passed a law extending the breadth of Greece’s territorial waters in the Aegean Sea towards Turkey. While bilateral treaties exist between Turkey and Libya and between Greece and Egypt, each regulating the maritime zones of the contracting states, no such agreement exists between Greece and Turkey. “These agreements, however, have no legal effect on Greece and Turkey because international agreements must not harm nor benefit …

Cardozo Dispute Resolution Society Presents: Wine Negotiation, Cardozo Dispute Resolution Society, Cardozo Wine Society

2023–2024 Flyers

No abstract provided.

Mediation Between States And Criminal Defendants For Post-Conviction Relief Under State Dna Statutes, Nowshin Nawal

Cardozo Journal of Conflict Resolution (CJCR) Blog

With new advances in DNA technology, it has become easier to use DNA testing to find perpetrators of crime where DNA evidence is present. Many incarcerated individuals claiming innocence seek to have the evidence tested during post-conviction in light of new technology. Forty-seven states now have DNA statutes that allow testing during the post-conviction stage. A new problem arises because state prosecutors are often reluctant to agree to DNA testing, which leaves litigation as the remaining method—which is inefficient. The process would be more efficient if a third party worked with the state and the defendant.

This post was originally …

From Conflict To Resolution: The Advantages Of Mediation In Estate Planning, Sarah Natanov

Cardozo Journal of Conflict Resolution (CJCR) Blog

Estate planning involves advanced planning for managing and distributing one’s assets following their passing. It entails identifying inheritors among individuals or entities and establishing measures to ensure the seamless execution of these wishes, aiming to minimize future complications. Estate planning documents often used to distribute assets after one’s passing are wills, trusts, and other legal documents. While these documents may serve as a roadmap for asset distribution, they may not invariably preclude disputes or conflicts among beneficiaries or family members.

This post was originally published on the Cardozo Journal of Conflict Resolution website on March 19, 2024. The original post …

Lopez V. Cintas Corporation: Another Interstate Headache, Kyle Chrisman

Texas A&M Law Review

This Note analyzes a 2022 Fifth Circuit opinion concerning two issues: first, whether local delivery drivers are engaged in interstate commerce, and second, who decides challenges to arbitrability. In Lopez v. Cintas Corporation, the Fifth Circuit first held that local delivery drivers are not engaged in interstate commerce because they do not play a direct and necessary role in interstate commerce. Second, the court held that the arbitrator decides challenges to the validity of arbitrability when the challenge could also, if successful, attack the validity of the entire contract. The Fifth Circuit used incorrect reasoning, overemphasizing the crossing of …

Dissociative Identity Disorder And Mediation: Exploring Legal Capacity, Bayla Zohn

Cardozo Journal of Conflict Resolution (CJCR) Blog

Dissociative Identity Disorder (“DID”) is a mental disorder where the affected individual has two or more distinct personalities. As a protection strategy against severe, persistent abuse and trauma, DID develops in childhood and lasts the entirety of the person's life. A crucial aspect of DID is "dissociation," which is defined as a defense mechanism in which threatening ideas and feelings are separated from the rest of the psyche and conflicted impulses are kept apart. Dissociation refers to the disconnection from one’s environment, emotions, memories, and thoughts. The child's neuronal sense of self-identity is still developing at the time of this …

The Supreme Court Has Granted Review For Arbitration Stays In Employment Cases: Smith V. Spizzirri, Sarah Cole

Cardozo Journal of Conflict Resolution (CJCR) Blog

The Supreme Court has granted review to address a circuit split on whether cases should be paused or thrown out after they are moved to arbitration. The courts are split six to four, four allowing lawsuits to be dismissed when underlying allegations must go through mandatory arbitration. The case is from the Ninth Circuit, on the allowance side of the split, Smith v. Spizzirri, with the petition granted 1/12/24. It addresses the language in a section of the Federal Arbitration Act (“FAA”). The section of the Act under review states: “If any suit or proceeding be brought in any of …

The American Arbitration Association’S Ai Integration Efforts For Alternative Dispute Resolution, Ronnie Cattier

Cardozo Journal of Conflict Resolution (CJCR) Blog

The American Arbitration Association (“AAA”) has joined a long line of various organizations that are looking to make use of, and integrate artificial intelligence (“AI”) into their processes.The AAA has launched innovation programs that are lending support to the idea of AI integration into arbitration, mediation, and other Alternative Dispute Resolution (“ADR”) methods. These programs are looking at creating the right structure and guidelines for AI usages. This is two-fold: on the one hand, the AAA has been building its own solutions; on the other, there is an increasing awareness on developing the framework for external AI tools.

This post …