Other Law Commons^™

Negotiation And Settlement In Nagorno-Karabak: Maintaining Territorial Integrity Or Promoting Self-Determination? , Argam Derhartunian

Pepperdine Dispute Resolution Law Journal

The little-known region of Nagorno-Karabakh, known to Armenians as Artsakh, has been no stranger to conflict. This land, nestled in the historic "Armenian Plateau," has been ruled by many different dynasties and seen the faces of many different ethnicities and cultures. Today, both Armenians and Azeris claim an absolute historic right to Nagorno-Karabakh, periodically fighting over the region. Although the intense fighting ended in 1994, negotiation efforts regarding the territory of Nagorno-Karabakh remain stalemated. This has caused the leaders of Karabakh to declare the region an independent republic, although no state, including Armenia, has recognized this status. This article will …

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.

Lawyers, Faith, And Peacemaking: Jewish Perspectives Of Peace, Rabbi Yitzchok Adlerstein

Pepperdine Dispute Resolution Law Journal

We can only consider the role of peacemaking in Jewish law after examining the meaning and place of peace. Accuracy prevents me from opening with some platitude about how peace occupies a central, pivotal position in Jewish thought. It doesn't. Peace and peacemaking have a curious habit of not turning up in the middle of things, but all the way at the end. There are too many instances of this to be coincidental. There are nineteen blessings in the Amidah, the central (indeed!) prayer that Jews recite three times a day, every weekday of their lives. The very last …

Cudgel Or Carrot: How Roper V. Simmons Will Affect Plea Bargaining In The Juvenile System , D. Brian Woo

Pepperdine Dispute Resolution Law Journal

In 2005, the United States Supreme Court held, in Roper v. Simmons, that the execution of convicted juveniles violated the Eighth Amendment's prohibition on cruel and unusual punishment. In addressing the issue, the Court determined that a national consensus had developed against the execution of juveniles. Ultimately, a majority of the court decided that a national public consensus had been reached against the execution of juveniles under 18 in age. With Roper, no longer can juveniles of any age be executed. This decision will undoubtedly affect the entire juvenile penal system, from how cases enter the system, to …

Mediating Child Custody Disputes For High Conflict Couples: Structuring Mediation To Accommodate The Needs & Desires Of Litigious Parents , Jessica J. Sauer

Pepperdine Dispute Resolution Law Journal

While alternative dispute resolution has become widely accepted in recent years, several types of legal disagreements continue to be regarded as unsuitable for mediation. Child custody disputes between "high conflict" couples are one such category. Unfortunately, the process of litigating custody disputes between high conflict couples can be more damaging to children than the parents' actual divorce. Instead of dismissing mediation out of hand because of the difficulties in helping these parents see eye-to-eye, scholars might be wise to reevaluate the potential for mediating these disputes. This article will attempt to advance this idea in several ways. To begin, it …

Case Studies: The Ways To Achieve More Effective Negotiations, Renee A. Pistone

Pepperdine Dispute Resolution Law Journal

For many lawyers, deciding which negotiation strategy to employ depends on the specific context of a negotiation. In fact, the attorney faces a complex choice in their selection from among the different negotiation strategies and must frequently negotiate any particular matter using a combination of more than one negotiation strategy. Most lawyers use the art of negotiation as a tool in their daily practice. The trend is that many attorneys and clients decide to negotiate their disputes themselves rather than have a Judge make the decision, due to the cost and delay. Hence, there is increased pressure to negotiate and/or …

Mass Disaster Mediation: Innovative, Adr, Or A Lion's Den?, Elizabeth Baker Murrill

Pepperdine Dispute Resolution Law Journal

Mass torts and other mass claims are becoming an ever more popular forum for the use of alternative dispute resolution to resolve parties' claims in the wake of events that produce thousands of conflicts overnight. Mediation, in particular, has been used in several high-profile mass disaster events in an effort to resolve individual claims efficiently and quickly. This paper evaluates special risks posed in this kind of mediation that can go to the heart and the integrity of the mediation process. The thesis of this paper is that the potential imbalance in the parties' experience, education, and individual situation can …

The Negotiator-As-Professional: Understanding The Competing Interests Of A Representative Negotiator, Trevor C. W. Farrow

Pepperdine Dispute Resolution Law Journal

This article is about lawyers as negotiators, and in particular, it is about identifying and understanding the influential and potentially competing interests that are - or at least should be - in the minds of lawyers (and potentially other third party representatives) during the overall negotiation process. While there continues to be an increasing amount of literature on the mechanics and strategies of negotiation, the underlying interests that are typically at stake in representative negotiations from the perspective of representatives - particularly negotiations involving lawyers - have not been adequately studied. And until all interests are identified and placed squarely …

Meet Me On Death Row: Post-Sentence Victim-Offender Mediation In Capital Cases, Rachel Alexandra Rossi

Pepperdine Dispute Resolution Law Journal

Since the 1970's, victim-offender mediation (VOM) has increased in use, most commonly with minor offenses. More recently, VOM has been sparingly applied to serious and violent crimes, including "rape, vehicular homicide, attempted homicide, and murder." Death penalty cases have rarely been the focus of restorative justice or VOM, likely because the victim has died and the offender will soon be executed, and these two parties are traditionally the focus of restorative justice. However, while capital cases involve unique concerns and issues, VOM can still be applied in these cases. The process would only require some modification of the focus and …

Is Three A Crowd? Neutrality, Partiality And Partisanship In The Context Of Tripartite Arbitrations , David J. Mclean, Sean-Patrick Wilson

Pepperdine Dispute Resolution Law Journal

This paper will discuss issues surrounding party-appointed arbitrators on tripartite panels and will attempt to offer practical observations about what parties can expect under the tripartite system.

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 …

A Post-Pierce Program: Using Idr To Improve The Los Angeles Fire Department's Current Complaint And Disciplinary Procedure , Jacklyn Pawlowski Floryan

Pepperdine Dispute Resolution Law Journal

Having an alternative to litigation is important for employees and employers in all organizations and corporations. One such option is through internal dispute resolution (IDR) mechanisms. IDR mechanisms are alternative processes used instead of litigation to solve a dispute in its early stages. When organizations and corporations do not have an established set of mechanisms in place or the employees are unaware of the procedure, lawsuits result. The Los Angeles Fire Department (LAFD) is one such organization that does not have a strong, established IDR procedure in place. This paper analyzes the LAFD's current complaint and disciplinary procedure and how …

Style Vs. Model: Why Quibble? , Susan Oberman

Pepperdine Dispute Resolution Law Journal

This article raises some of the questions necessary to address criticisms about quality and ethics of mediation practices: (Part I) Is there a "mandate" to provide informal justice through mediation? (Part II) Why challenge the generic mediation mythology? (Part III) Does naming differences as 'styles' result in greater clarity? (Part IV) Is mediation fulfilling its "mandate" to serve the court? (Part V) What are the obstacles to changing the dominant discourse on mediation? (Part VI) In answering these questions, an alternative framework is proposed to shift the current discourse about generic mediation based on artistry or style, to a discourse …

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 …

Road Scholars - March 2012, University Of Nevada, Las Vegas -- William S. Boyd School Of Law

Boyd Briefs / Road Scholars

The March 2012 issue of Road Scholars highlights law faculty members' scholarly activities beyond the walls of the William S. Boyd School of Law.

The Ban On The Use Of Chimpanzees In Biomedical Research And Testing In The Uk Should Be Made Permanent And Legally Binding, Michelle Thew, Jarrod Bailey, Michael Balls, Michelle Hudson

Laboratory Experiments Collection

The Coalition Government is currently considering how to transpose Directive 2010/63/EU on animal experimentation into UK law. The Directive bans the use of Great Apes in laboratories, but EU Member States can seek (now or, more likely, at some time in the future) a derogation from the Commission to permit such use, where this is considered essential for the preservation of the species in question or in relation to an unexpected outbreak of a life-threatening or debilitating clinical condition in human beings. Currently, the policy of the Government is not to approve any experiments on Great Apes, but it is …

Order Supported By Law: The Enforcement Of Rules In Online Communities, Nicolas Suzor

Mercer Law Review

As online social spaces grow in importance, the complex relationship between users and the private providers of the platforms continues to raise increasingly difficult questions about legitimacy in online governance. This Article examines two issues that go to the core of legitimate governance in online communities: (1) how are rules enforced and punishments imposed, and (2) how should the law support legitimate governance and protect participants from the illegitimate exercise of power? Because the rules of online communities are generally backed by contractual terms of service, the imposition of punishment for the breach of internal rules exists in a difficult …

Choice Of Law After The Currie Revolution: What Role For The Needs Of The Interstate And International Systems?', Gary J. Simson

Mercer Law Review

Mercer University School of Law, which dates back to 1873, has had many distinguished graduates in its long history. In the realm of legal scholarship, however, one graduate-Brainerd Currie-unquestionably stands alone above them all. In the course of an academic career that began in 1935 with two years at his alma mater and included substantially longer stints on the law faculties at Duke and the University of Chicago, Currie transformed through his scholarship the field of conflict of laws. ...

My project in this Article concerns "choice of law"-that branch or subset of the field of conflict of laws that …

Choosing Punishment, Miriam H. Baer

Faculty Scholarship

No abstract provided.

The Future Of Commercial Arbitration, Richard Chernick, William F. Rylaarsdam, Thomas J. Stipanowich, Stephen J. Ware

Pepperdine Dispute Resolution Law Journal

This is the Third Annual Robert Weil Lecture that has been hosted by the Los Angeles County Bar Association Dispute Resolution Services (DRS). Bob Weil was a distinguished judge of the Los Angeles Superior Court. He was a legal editor and co-author of the Weil & Brown Civil Procedure Practice Guide, which is the leading guide in California. At the end of his career, he was a popular and effective private judge. Our panel tonight is an extraordinary group of arbitration experts. Professor Tom Stipanowich is Co-Director of the Straus Institute at Pepperdine. He is a former President of the …

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 …

The Institutional Role In Arbitrating Patent Disputes, Murray Lee Eiland

Pepperdine Dispute Resolution Law Journal

This paper will address, in particular, the nature of an international patent dispute and how the rules of the main arbitral institutions influence the unfolding arbitration. The main issue considered here is if institutional rules address the particular needs of patent disputes. Arbitral institutions are prepared to resolve many kinds of disputes, but because they operate under different rules, some may be more or less prepared for the special nature of IP. Patent related disputes are even more specialized. Even small differences in institutional rules can have a large impact upon the unfolding arbitration. After a brief consideration of arbitrability, …

Paving The Road To A More Free World: Adr As Sustainable Development - A Look At Bangladesh , Amadea M. Goresh

Pepperdine Dispute Resolution Law Journal

In this paper, I will look at the sustainable impact that Alternative Dispute Resolution (ADR) programs are having in the third world by examining one such nation in particular, the country of Bangladesh. Due to its historical problems combating poverty and corruption, Bangladesh has uniquely devised alternative, extra judicial means of resolving conflict. I will begin by looking at the current state of affairs of the country's government and judicial systems. Next, I will examine the nation's distinctive dispute resolution mechanism, known as shalish, and then discuss the pivotal role non-governmental organizations (NGOs) are playing in adapting the traditional ADR …

Revisiting The Promise Of Mediation For Employment Discrimination Claims , Susan K. Hippensteele

Pepperdine Dispute Resolution Law Journal

This paper generally examines the theory and practice of alternative dispute resolution (ADR) and specifically examines the role mediation has played in propelling rights discourse away from the center of efforts to achieve equal employment opportunity in the United States. It further addresses assumptions regarding individual employee goals in the context of a legal environment in which litigating to achieve rights-based remedies is increasingly difficult for grievants.

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" …

The Defense Attorney As Mediator In Plea Bargains, Gabriel Hallevy

Pepperdine Dispute Resolution Law Journal

In this article, it will be argued that defense counsel's function in negotiating plea bargains is identical to that of a mediator, seeking to reconcile the positions of the defendant and the prosecution. Within this framework, the plea bargain should be seen as part of the broad conception of Alternative Dispute Resolution (ADR) which first made its appearance at the end of the 1970s. An analysis of plea bargains in the Western world as part of the broader concept of ADR actually shows that it is the defense attorney, rather than the court or the other parties to the issue, …