Dispute Resolution and Arbitration Commons^™

The Multilateral Investment Court: Necessary Isds Reform Or Self-Fulfilling Prophecy?, Fahira Brodlija

Arbitration Law Review (2009 - Present)

No abstract provided.

Sovereign Immunity From Execution Of Foreign Arbitral Awards In India: The "New" Kid On The (Super) Pro-Arbitration Block, Ylli Dautaj

Arbitration Law Review (2009 - Present)

No abstract provided.

Federal District Courts May Not Assist Discovery Efforts In Connection With Proceedings Before Arbitral Tribunals Constituted Under The Icsid, Victor De Oliveira Leite

Arbitration Law Review (2009 - Present)

No abstract provided.

Uncompelled: Circuits Split Over The Pre-Hearing Discovery Powers Of Arbitrators, Maya Rashid

Arbitration Law Review (2009 - Present)

No abstract provided.

The Intra-Eu Bit Dilemma And The Enforcement Of Awards Outside The Eu: A Solution For Investors After The Cjeu Shut The Door To Their Cases?, Denny Peixoto

Arbitration Law Review (2009 - Present)

No abstract provided.

Rico's Long Arm, Randy D. Gordon

Faculty Scholarship

RICO has for over 50 years presented something of a parlor game for lawyers, mostly because its text leaves wide latitude in interpretation. And, as is often the case with RICO, resolution of one question begets more. The Supreme Court’s recent decision in Yegiazaryan v. Smagin proves no exception. Here, the Court brought some clarity to a question left open by RJR Nabisco: viz, what must one plead and prove to satisfy the “domestic injury” requirement necessary to invoke an extraterritorial application of RICO. The Court held that a foreign plaintiff can indeed, given the right facts and circumstances, establish …

Expanding The Ban On Forced Arbitration To Race Claims, Michael Z. Green

Faculty Scholarship

When Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFASASHA”) in March 2022, it signaled a major retreat from the Supreme Court’s broad enforcement of agreements to force employees and consumers to arbitrate discrimination claims. But the failure to cover protected discriminatory classes other than sex, especially race, tempers any exuberance attributable to the passage of EFASASHA. This Article prescribes an approach for employees and consumers to rely upon EFASASHA as a tool to prevent both race and sex discrimination claims from being forced into arbitration by employers and companies. This approach relies upon procedural …

Multiple Proceedings And Abuse Of Procedure On Bri Disputes, Mariam Gotsiridze

Research Collection Yong Pung How School Of Law

This article argues that specific mechanisms and best practices should be adopted by different players in the Belt and Road Initiative (BRI) dispute resolution ecosystem to mitigate the risks of multiple proceedings and abuse of procedure. Specifically, (i) states should enhance their multilateral and bilateral treaty practices; (ii) arbitral institutions should enhance their arbitral rules as well as cooperate with each other; and (iii) states should direct more efforts to dispute prevention and amicable dispute settlement. This article will explain what these best practices and mechanisms are.

Arbitration's Unraveling, Myriam E. Gilles

Articles

It has been over a decade since the Supreme Court declared that the Federal Arbitration Act preempts state-law policies that stand as an obstacle to enforcement of the class-banning arbitration clauses that companies tuck into standard-form contracts. In that time, plaintiffs’ lawyers have tried challenging class action–banning arbitration provisions on myriad legal grounds, as well as pressing for federal and state legislation to undo the Court’s ruling in AT&T Mobility LLC v. Concepcion. Neither strategy has borne much fruit—until now. In the past few years, congressional action has exempted specific categories of cases from mandatory arbitration, suggesting that an area-by-area …

How Adr Can Combat The Rise In Antisemitism And Islamophobia On College Campuses, Cynthia Spitzer

Cardozo Journal of Conflict Resolution (CJCR) Blog

Since the October 7, 2023 massacre in Israel by the terrorist organization Hamas, there has been ongoing strife and protests throughout the world. Such turmoil notably coincides with a rise in hate crimes, antisemitism, and islamophobia, noticed not only on the streets of the United States, thousands of miles away from Israel, but also in the microcosm of college campuses.

This post was originally published on the Cardozo Journal of Conflict Resolution website on February 29, 2024. The original post can be accessed via the Archived Link button above.

Cjcr Publishes Volume 25, Issue 1 (Fall 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 1 (Fall 2023).

The print edition of the issue is forthcoming. This post was originally published on the Cardozo Journal of Conflict Resolution website on February 28, 2024. The original post can be accessed via the Archived Link button above.

No Need To Reinvent The Wheel: The Positive Relationship Between Green Technology And Patent Enforcement, Addison S. Fowler

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Arbitration In Professional Sports: Is It Time To Move On?, Alessandra Makris

Cardozo Journal of Conflict Resolution (CJCR) Blog

Arbitration clauses are extremely common in the contracts of athletes all over the world. However, with the recent focus on eliminating mandatory arbitration clauses in employment contracts, the question of whether professional sports leagues will start doing the same remains. In the world of professional sports, arbitration clauses can often be found within a Collective Bargaining Agreement (“CBA”) between a players’ association and an owners’ group. Five major professional sports have arbitration clauses in their CBAs: Major League Baseball (“MLB”), National Basketball Association (“NBA”), National Football League (“NFL”), Major League Soccer (“MLS”) and National Hockey League (“NHL”). Typically, the clauses …

Crypto And Arbitration: The Perfect Pair, Jared Bond

Cardozo Journal of Conflict Resolution (CJCR) Blog

While Cryptocurrency was once seen as the forefront of unique new investment opportunities, early 2022, known as the “Crypto Winter” saw a steep decline in cryptocurrency prices.[1] The fall of cryptocurrency led to an increase in crypto arbitration, with some cases just starting to reach the court system.[2] Due to the international nature of cryptocurrency and the unique challenges disputes present, many crypto businesses include arbitration clauses in their contracts.[3] While not yet clear how many of these issues will ultimately be resolved, there are clear benefits for crypto companies using arbitration as their chosen dispute resolution process, and certain …

Sequel: Negotiation Strategies Sag-Aftra And Amptp Should Employ To Prevent Future Strikes, Molly Baraban

Cardozo Journal of Conflict Resolution (CJCR) Blog

The Screen Actors Guild-American Federation of Television and Radio (“SAG-AFTRA”) strike finally ended on November 9th, after months of contentious dealings between the two groups centering on concerns over the future of acting and the ability to compensate talent fairly. While we can now all finally celebrate the anticipated return of our favorite shows like Euphoria, House of the Dragon, and Stranger Things, we should also take a moment to critically analyze why SAG-AFTRA and the Alliance of Motion Picture and Television Producers (“AMPTP”) have historically continued to have conflict and how these groups can learn to negotiate better to …

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Sunny Days Ahead: Using Adr To Fuel The Future Of Green Energy, Matthew Graham

Journal of Dispute Resolution

The energy landscape in the United States (“U.S.”) has undergone significant changes in the last few centuries. Energy consumption has increased dramatically as more energy sources have been developed. As one of the world’s leading energy consumers, the U.S. has a large incentive to develop energy solutions that are both sustainable, dependable, and independent of foreign powers. For these reasons, Congress has spent the last few decades passing numerous pieces of legislation encouraging investment in energy solutions that will benefit the U.S. for centuries. With the enactment of the Inflation Reduction Act (“IRA”) of 2022, the U.S. has made its …

Why Removing Institutional Discretion And Applying Restorative Justice To Mediation Could Prove Beneficial To Title Ix Dispute Resolution, Clare Hensley

Journal of Dispute Resolution

University students have often voiced concern that their institution did not do enough in addressing sexual assaults on campus. There is a perception among students and potential victims that there is a culture of ignoring and underreacting to sexual violence on campus. As many as one in five female undergraduate students experience sexual violence during college, but few feel confident enough to report it.

The Judicial Grassroots Of The "Arbitration Revolution", Tamar Meshel

William & Mary Business Law Review

The “arbitration revolution”—the meteoric rise in the use of arbitration in the United States—is commonly imputed to the Supreme Court’s unilateral and ideologically driven expansion of the Federal Arbitration Act (FAA). The portrayal of the FAA’s evolution as a campaign launched by a Supreme Court that is out of touch with society and with the judicial system over which it presides usefully serves to delegitimize both this one-hundred year-old statute and arbitration more generally. This Article argues that the popular description of the Supreme Court as the sole instigator of the “arbitration revolution” is misleading because it conveniently ignores a …

Legislative Update, Katherine Albers, Lauren Bean, Dillon Dewey, Hannah Jackson, Victoria Mantel

Journal of Dispute Resolution

The Legislative Update is compiled and written annually by the Journal of Dispute Resolution’s Associate Members under the direction of the Associate Editor in Chief. It is designed to provide readers with a listing of pertinent legislation affecting the field of alternative dispute resolution (“ADR”) and a more detailed look at certain bills because of their importance or novelty within the field.

Faculty List

Journal of Dispute Resolution

No abstract provided.

Ending The Epidemic Of Accidental Personality Disorder Discrimination By Well-Meaning Mediators, Dan Berstein, Hannah Diamond, Philip T. Yanos

Journal of Dispute Resolution

People who have or appear to have mental disorders encounter rampant bias and stigma, including from mediators. This article focuses on some of the most heavily stigmatized mental health problems - personality disorders - and how some mediators discriminate against parties based on their guesses and assumptions that those parties may have these conditions.

Odd One Out: Inconsistency In The Federal Arbitration Act’S Jurisdictional Language, Joshua Long

Journal of Dispute Resolution

After almost a century, the Federal Arbitration Act (FAA) continues to guide and change the arbitration landscape. While greater focus has been placed on the FAA’s substantive merits and evolution, the act’s procedural role in outlining the relationship between arbitration and the federal court system plays an equally important role in alternate dispute resolution. Notably, recent concerns regarding inconsistencies in the act’s jurisdictional language may undermine the FAA’s ability to provide a clear, efficient, and fair process for arbitration.

Description

Journal of Dispute Resolution

No abstract provided.

Strategies For Successful Negotiation Of International Disputes: Positional Bargaining Vs. Principled Negotiation In The Indus Water Treaty Negotiations, Sushant Mahajan

Journal of Dispute Resolution

Water is the root of all civilization. Great empires of the past arose around lakes and river systems, from the Yangtze to the Nile to the Tiber. While water resources bolstered the power of world leaders, water mismanagement had the potential to lead to their downfall. Even in modern times, water availability is a significant constraint on development – the magnitude of this constraint is particularly felt in arid and semi-arid regions especially as climate change takes effect. This importance has made water supply a great source of conflict. Though it has been a cause of conflict for centuries, transboundary …

Climate Diplomacy: Can Mediating Climate Considerations Into Peace Agreements Create A Sustainable Future?, Kayla Fowler

Journal of Dispute Resolution

The Earth’s temperature has risen on average 0.14 degrees Fahrenheit per decade since 1880—a total of 2 degrees. Since 1981, the rate of warming has been over twice as fast at 0.32 degrees Fahrenheit per decade. 2022 was the sixth-warmest year on record, and the 10 warmest years have all occurred since 2010. These long-term shifts in temperature exemplify the changes to our climate due to the increasing accumulation of gases caused by human activity on Earth, more commonly referred to as climate change. While it is abundantly clear that climate change is negatively affecting our environment, it is also …

Zf Automotive V. Luxshare: The Supreme Court’S New Gloss On 28 U.S. Code § 1782 And What It Means For International Commercial Arbitration, Madina Lokova

Journal of Dispute Resolution

The federal statute 28 U.S.C. § 1782 (“Section 1782”) allows litigants in foreign proceedings to obtain discovery in the United States, under the broad US discovery rules, for use in such proceedings. Although Section 1782’s use by parties to foreign proceedings has been expanding, there was a split in authority regarding whether the statute was broad enough to permit United States’ courts to authorize discovery for use in private arbitration proceedings overseas.

A “Rule Making” Class: The Federal Trade Commission’S Expansive Per Se Ban On Noncompete Clauses: Authority, Enforceability, And The Need For Congressional Action, Nolan Johnson

Journal of Dispute Resolution

A non-compete clause is “an agreement or contract not to interfere or compete with a former employer (as by working with a competitor).” The Federal Trade Commission (“FTC”) has proposed a per se ban on non-compete provisions in employment contracts. This would arguably be the FTC’s second substantive rule under the FTC Act. This substantive rule making departs from the traditional common law style rule-making process in which the courts create antitrust jurisprudence standards. In this way, the FTC has challenged the practice by exploring a new avenue of power under Section 5 of the FTC Act.

Mandatory Arbitration And Lgbtq+ Hostile Workplace Protections: A Review Of The Ending Forced Arbitration Act, Its Impact, And Implications, Jared E. Munster

Journal of Dispute Resolution

In 2022, the 117th Congress amended the Federal Arbitration Act (FAA) in response to widespread public pressure to change the culture of American employment. After years of pervasive sexual harassment across industries, supported by the growth of mandatory, adhesive arbitral agreements in employment contracts, Congress adopted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“Ending Forced Arbitration Act”) which rendered unenforceable pre-dispute arbitral agreements for claims of sexual harassment or sexual assault. 1

Masthead

Journal of Dispute Resolution

No abstract provided.