Other Law Commons^™

International Arbitral Appeals: What Are We So Afraid Of? , Erin E. Gleason

Pepperdine Dispute Resolution Law Journal

This article will explore the advantages of instituting appellate mechanisms in investor-state disputes and international commercial arbitration. Part II begins with a review of the WTO Appellate Body's development and workings, followed by an analysis of other appellate procedures for international trade law arbitration, including the MERCOSUR system's Permanent Court and the Grain and Feed Trade Association's appeals process. Part III examines the current methods for reviewing investor-state arbitration awards under ICSID and NAFTA. Part III goes on to advocate for the creation of an Appeals Facility, separate from current arbitral institutions, which would be empowered to hear appeals in …

Honolulu: Geneva Of The Pacific?, Robert K. Wrede

Pepperdine Dispute Resolution Law Journal

Simply stated, this paper proposes revitalization of a long dormant Hawaiian legislative plan to create a state-of-the-art facility in the Aloha State specializing in avoiding, managing and resolving international commercial conflicts using methods other than traditional litigation. The paper's premise is that a mid-Pacific facility specializing in the use of non-litigation methods for dealing with Pacific Rim transnational commercial disputes would both enhance Pacific Rim commerce, in general, and posture Hawaii as a major player in that valuable and rapidly growing sector of global affairs.

Who Killed The Friendly Settlement? The Decline Of Negotiated Resolutions At The European Court Of Human Rights , Gregory S. Weber

Pepperdine Dispute Resolution Law Journal

The "Friendly Settlement"--the negotiated settlement of cases at the European Court of Human Rights--is on the decline. The Friendly Settlement's decline will likely provoke mixed sentiments in the international human rights camp. Some may applaud the development, including those who believe that only judgments by the Court are likely to chastise member states sufficiently and to announce standards of conduct for other states to follow. But others may shed more than a few mournful tears. An active settlement program can help reduce the Court's huge case backlog and give complaining parties a faster, and often more generous, measure of resolution …

The Iranian Hostage Crisis And The Iran-U.S. Claims Tribunal: Implications For International Dispute Resolution And Diplomacy, Warren Christopher, Richard M. Mosk

Pepperdine Dispute Resolution Law Journal

This is the twenty-fifth anniversary of what has become known as the Iranian Hostage Crisis. We shall look back on those events in order to point to possible issues, lessons and solutions for the future.

Negotiating With Deity: Strategies And Influences Related To Recent North Korean Negotiating Behavior , Jesse D. Steele

Pepperdine Dispute Resolution Law Journal

As images of nuclear missiles flash across television screens and news reports containing indiscernible Asian writing warn of conflict on the other side of the world, this article addresses one of the single greatest threats to global stability-the North Korean Nuclear Weapons Crisis-and assesses the negotiation strategies that have brought the world to its current situation. By looking at the historical negotiation tactics that have been utilized by each of the parties involved, particularly in light of societal norms and cultural influences, one can ascertain a great deal of insight regarding each party's respective strategies and objectives. This insight gleaned …

Looking Into A Crystal Ball: Courts' Inevitable Refusal To Enforce Parties' Contracts To Expand Judicial Review Of Non-Domestic Arbitral Awards, Eric Chafetz

Pepperdine Dispute Resolution Law Journal

This article will first discuss the legislative history of the NY Convention in general and the history of its vacatur provisions in particular. Second, it will summarize certain federal court decisions that address the Expansion Issues and reach the Consensus. Third, it will argue that the Expansion Issues were resolved incorrectly, because the courts addressing them do not recognize how the operative/material language in section 207 of Ch. 2 of the FAA and section 9 of Ch. 129 of the FAA has a virtually identical meaning, and therefore should have been construed and applied in the same manner. Fourth, this …

East Meets West: An International Dialogue On Mediation And Med-Arb In The United States And China, Thomas J. Stipanowich, Jung Yang, Jay Welsh, Chen Qiming, Peter Robinson, Tan Jinghui, Chen Guang, Jeff Kichaven, Denise Madigan, Wang Hongsong, Zhang Jianhua

Pepperdine Dispute Resolution Law Journal

This Second Beijing Arbitration Commission (BAC)/Straus Institute for Dispute Resolution International Videoconference, following up on last year's successful inaugural program, will provide different perspectives on the current BAC initiative and evolving attitudes toward mediation and med-arb. Topics include: (1) the development and current state of business mediation in the U.S.; (2) the challenges and opportunities confronting China in developing stand-alone business mediation; (3) reflections on the skills necessary for mediators; (4) common pitfalls in mediation; (5) perspectives on med-arb (as opposed to stand-alone mediation); and (6) how to most effectively use mediation in conjunction with arbitration procedures.

Victorious Youth In Peril: Analyzing Arguments Used In Cultural Property Disputes To Resolve The Case Of The Getty Bronze, Alexander Mackintosh Ritchie

Pepperdine Dispute Resolution Law Journal

There has been a great deal of press in the recent years concerning the illegal exportation of cultural objects, their illicit sale to museums and private collectors, and the arguments that would compel either the return or restitution of such objects. This article will offer an introduction to this area including the current law and arguments by focusing the dispute surrounding a tremendous cultural asset, currently owned and residing in the United States-the Getty Bronze. The status of the statue is in question because the Italian authorities are claiming that the statue was illegally exported and, therefore, could not be …

Culture In International Parental Kidnapping Mediations, Melissa A. Kucinski

Pepperdine Dispute Resolution Law Journal

Mediating an international parental kidnapping case involves much more than knowing some family law-it involves complex emotions, strict time constraints, multiple nations' laws and policies, intricate international treaties, juggling interpreters, attorneys, government officials, judges, and parents who may be physically located thousands of miles apart, and the blunt reality that you may have no understanding of either parent's cultural customs or the way each will communicate with the other parent or with you. While the "culture" part of the mediation may appear to be the least significant element, it could be key to the success of the mediation. Nonetheless, "culture" …

Negotiating And Mediating Peace In Africa , Nancy Erbe, Chinedu Bob Ezeh, Daniel Karanja, Neba Monifor, George Mubanga, Ndi Richard Tanto

Pepperdine Dispute Resolution Law Journal

Last year, a law review solicited my thoughts about, in their words, pushing the envelope with social justice and negotiating peace in a world dominated by power and violence. Taking their language literally, one must ask how to effectively address contemporary obstacles to ensure that the message and, most importantly, the means of justice are truly delivered to those in need. One answer-which may seem obvious to readers but is actually much too rare in practice-is to work with, empower, and support the conflict work of the community members themselves. This article introduces the plans of five African professionals, demonstrating …

Outward Bound To Other Cultures: Seven Guidelines For U.S. Dispute Resolution Trainers, Harold Abramson

Pepperdine Dispute Resolution Law Journal

"Would you like to go to Delhi to train people in negotiations?" the email message inquires. "Are you kidding?" you think to yourself. "Of course, I would get to do in an exotic location what I enjoy doing at home – helping others to resolve conflicts. And I also would meet fascinating people and tour an intriguing city and country with a local host." "YES," you reply after working out the logistical details. Now as you begin to pack your off-the-shelf training materials, you start to wonder how you should adapt your training for this foreign location. You do not …

"El Agua No Se Vende: Water Is Not For Sale!" The Latin American Water Tribunal As A Model For Advancing Access To Water, Mikita A. Weaver

Pepperdine Dispute Resolution Law Journal

At the international level, water is now understood to be a basic human right. However, conflict continues to intensify surrounding indigenous people's access to water as the resource becomes scarcer. In particular, this paper will examine the struggle of indigenous people in Latin America and the creation of the Latin American Water Tribunal (LAWT) as a solution. Section II will describe the LAWT, including the formation of the tribunal, case selection, and the structure of the public hearing. Section III will discuss both how the LAWT overcomes problems with the current legal system and the success of the tribunal as …

The Case Against Maritime Class Arbitration: A Brief Policy Argument, Landon R. Schwob

Pepperdine Dispute Resolution Law Journal

On April 27, 2010, the United States Supreme Court decided a case that will have far-reaching implications for virtually all sectors within the arbitration industry, including the subject of this article-maritime arbitration. The question presented in Stolt-Nielsen v. AnimalFeeds International Corp. dealt with class arbitration and whether its imposition on parties whose arbitration clauses are silent on that issue is consistent with the Federal Arbitration Act (FAA). This article will primarily examine the history and viability of class arbitration-and arbitration in general-in the far more narrow context of maritime and the admiralty. Stolt-Nielsen provides an excellent backdrop against which to …

Clouded Diamonds: Without Binding Arbitration And More Sophisticated Dispute Resolution Mechanisms, The Kimberley Process Will Ultimately Fail In Ending Conflicts Fueled By Blood Diamonds , Shannon K. Murphy

Pepperdine Dispute Resolution Law Journal

In 2003, under an initiative of the United Nations (U.N.), various nations of the world gave life to the Kimberley Process Certification Scheme (KPCS)-a method by which consumers of all levels could know the origin of their diamonds-with the Scheme only certifying those harvested from legal, government-run mines. The Scheme's drafters believed that, if given the choice, consumers would choose to buy diamonds mined legally, with profits flowing to legitimate sources of power. However, the KPCS as it stands is voluntary and lacks the teeth needed to deter its violators. The KPCS lacks a binding arbitration agreement and needs a …

The End Of Forgetting And "Administrative Rights" To Our Online Personas, Jamie R. Lund

IP Theory

No abstract provided.

The Genius Of Roman Law From A Law And Economics Perspective, Juan Javier Del Granado

San Diego International Law Journal

The Article is organized as follows: The first part of this Article will introduce Roman private law, and sketch out the law and economics methodology to be applied to the Roman classical system. The second part of this Article will discuss the Roman private law of property, obligations, as well as commerce and finance. The third part will discuss the interaction of private law and private morality in the construction of Roman social order. The fourth part of this Article will discuss private procedural aspects of the Roman legal system. The fifth and final part of this Article will discuss …

Reciprocal Comity, Edward J. Janger

Faculty Scholarship

No abstract provided.

You Can Only Race If You Can’T Win? The Curious Cases Of Oscar Pistorius & Caster Semenya, Shawn M. Crincoli

Scholarly Works

No abstract provided.

Of Hitler And Camille Pissarro: Jurisdiction In Nazi Art Expropriation Cases Under The Foreign Sovereign Immunity Act, Elnaz Zarrini

Fordham Journal of Corporate & Financial Law

In November 1938, Walter Westfield, a renowned Jewish art dealer in Germany, was arrested, beaten, and imprisoned by the Nazis for an alleged violation of currency exchange laws.1 The true purpose of the arrest was to seize Westfield’s art collection for private resale, “a typical practice of the Nazi government.”2 On December 12 and 13 of the following year, a portion of Westfield’s art collection was seized and auctioned off through an order of the District Attorney’s Office Dusseldorf.3 In 1943, three years after Westfield was fined for the alleged violation and later sent to the Auschwitz death camp and …

The Interpretation Of Multilingual Statutes By The European Court Of Justice, Lawrence Solan

Faculty Scholarship

No abstract provided.

The Incomplete Global Market For Tax Information, Steven A. Dean

Faculty Scholarship

No abstract provided.

Taxation As A Global Socio-Legal Phenomenon, Steven A. Dean, Allison Christians, Diane Ring, Adam H. Rosenzweig

Faculty Scholarship

No abstract provided.

Cuban Claims: Embargoed Identities And The Cuban-American Oedipal Conflict (El Grito De La Yuma), Jose M. Gabilondo

Faculty Publications

No abstract provided.

Immigration Reform In America: Past, Present, And Future, Thaddeus Coffman

Undergraduate Theses and Capstone Projects

This paper examines immigration legislation throughout the history of the United States. The author has divided the focus of legislative activity into four main eras: the Laissez- Fair Era (1789-1875), the Anti-Asian Era (1876-1920), the National Origin Quotas Era (1921-1953), and the Illegal Immigration Era (1954-present). While these eras are not all inclusive, they are indicative of the main focus of legislation passed during their time. The author then compares the impact of major legislation passed during these eras to three current proposals aimed at addressing the increasing issue of illegal immigration: two versions of a guest-worker program and amnesty/legalization …

Center Of Main Interests, International Insolvency Case Venue, And Equality Of Arms: The Eurofood Decision Of The European Court Of Justice, Samuel L. Bufford

Northwestern Journal of International Law & Business

The European Court of Justice ("E.C.J.") issued a ruling on May 2, 2006 in the Eurofood case, finding that the commencement of an insolvency case for Eurofood in Ireland gave the Irish court priority under E.U. law over a similar insolvency case commenced shortly thereafter in Italy. The E.C.J.'s ruling responded to the Supreme Court of Ireland's referral to the E.C.J. of five questions of E.U. law based on the E.U. Regulation on Insolvency Proceedings ("E.U. Regulation"). The Irish Supreme Court had referred these questions to the E.C.J. preliminary to deciding a pending appeal of the Dublin High Court's decision …

The Myopia Of U.S. V. Martinelli: Extraterritorial Jurisdiction In The 21st Century, Christopher L. Blakesley

Scholarly Works

Beginning in January 1999 and continuing through January 2000, a U.S. soldier began frequenting an off-post Internet cafe in Darmstadt, Germany, called the Netzwork Café. There he would download images of child pornography and search Internet websites, logging onto Internet chat rooms in order to communicate with individuals willing to send him images of naked children and children engaged in sex acts.

Specialist Martinelli was eventually caught and charged with various violations of 18 U.S.C. § 2252A for knowingly mailing, transporting or shipping child pornography in interstate or foreign commerce (by computer); knowingly receiving child pornography that had been mailed, …

Destructive Ambiguity: Enemy Nationals And The Legal Enabling Of Ethnic Conflict In The Middle East, Michael Kagan

Scholarly Works

In the course of the Middle East conflict since 1948, both the Arab states and Israel have tended to take harsh measures against civilians based on their national, ethnic, and religious origins. This practice has been partially legitimized by a norm in international law that permits states to infringe the liberty and property interests of enemy nationals during armed conflict. Middle Eastern governments have misused the logic behind this theoretically exceptional rule to justify far-reaching measures that undermine the “principle of distinction” between civilians and combatants and erode the principle of non-discrimination that lies at the center of human rights …

Universal Proceduralism, Edward J. Janger

Faculty Scholarship

No abstract provided.

Frontier Justice: Legal Aid And Unhcr Refugee Status Determination In Egypt, Michael Kagan

Scholarly Works

Where UNHCR conducts refugee status determination (RSD), its reactions to legal aid for asylum-seekers have been mixed. Statistical evidence collected from Egypt in 2002 indicates a correlation between receiving some form of legal aid service and an asylum-seeker's increased chances of gaining refugee protection from UNHCR. Unconventional forms of legal aid, including limited services by supervised non-lawyers (including volunteers from the refugee community) showed a positive impact on first instance cases, while traditional legal aid models showed an impact at the appeal stage. Legal aid should form an essential part of UNHCR's RSD procedures, and NGOs should work to expand …

The Beleaguered Gatekeeper: Protection Challenges Posed By Unhcr Refugee Status Determination, Michael Kagan

Scholarly Works

The number of individual Refugee Status Determination (RSD) applications received by United Nations High Commissioner for Refugees (UNHCR) offices worldwide nearly doubled from 1997 to 2001, while UNHCR’s RSD operations have been criticized for failing to implement basic standards of procedural fairness. Yet, although there is some literature critiquing how UNHCR determines refugee status, there is little literature examining whether UNHCR should do so, and if it should, when, where, and under what conditions.

UNHCR performance of RSD poses protection challenges because it is founded on a basic contradiction. On the one hand, government action is essential for effective refugee …