Dispute Resolution and Arbitration Commons^™

Counterclaims In Investor-State Arbitration: A Tale Of Two Cases, Godwin Tan, Justin Tan

National Law School of India Review

This article explores the evolving role of counterclaims in investment treaty arbitration. While arbitral rules commonly permit counterclaims, their success has historically been limited due to challenges such as the scope of the parties’ consent to arbitration and the lack of a relevant investor obligation to ground the counterclaim. However, a discernible increase in counterclaims under the ICSID Convention over the past 15 years suggests that there may be a shift in practice. Against this backdrop, this article carries out a comparative analysis of two recent decisions – Iberdrola v. Guatemala (2020) and Lopez Goyne Family Trust v. Nicaragua (2023) …

How Can You Turn Adversarial Attorneys Into Quasi-Mediators?, John Lande

Faculty Publications

This article grows out of an educational program sponsored by the St. Louis chapter of the Association of Attorney-Mediators, which functioned as a focus group. It describes mediators’ experiences with attorneys in mediation who were cooperative and adversarial.

It describes things that mediators can do to make adversarial attorneys behave as “quasi-mediators.” Attorneys acting as quasi-mediators help their clients realistically understand the other side’s perspectives. The attorneys also promote their clients’ interests by enlisting the mediators’ help and encouraging the other side to adjust their positions. Attorneys who sometimes act as quasi-mediators tailor their techniques to their clients’ preferences and …

Choosing To Use Good Language In The "Adr" Field, John Lande

Faculty Publications

On October 30, 2024, Debra Berman posted a message on a listserv encouraging colleagues to drop the word “alternative” from “ADR.” Her post quickly prompted 24 responses. This article summarizes the listserv discussion about the term “ADR,” and demonstrates serious misconceptions embodied in popular concepts of “BATNA” and “facilitative” and “evaluative” mediation as well as other problematic language that we frequently use.

Language is a shared resource that can enable people to understand each other accurately and to improve our ideas and techniques. This article describes the many ways that language has huge effects on people’s thoughts and actions, and …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Repeal The Federal Arbitration Act's "Arising Out Of" Requirement, Stephen J. Ware

American University Business Law Review

Suppose Pfizer and CVS agree to arbitrate not only any disputes that might arise out of their contract containing an arbitration agreement but also any disputes that might arise out of any of the many earlier contracts between these two large corporations. Or Apple and Samsung agree to arbitrate any patent infringement claims either has against the other for the next five years. Or FedEx and UPS agree to arbitrate any tort claims either has against the other due to any collision of their vehicles in the next ten years. Or members of the Walton (Walmart) family agree to arbitrate …

Section 4 -- Jury, Trial: A Misnomer In The Faa, Tracey B. Frisch

American University Business Law Review

The purpose of the Federal Arbitration Act (FAA), according to the Supreme Court, was not merely to reverse judicial hostility towards arbitration by placing agreements to arbitrate on the same footing as other contracts but to actively promote the use of arbitration on a national scale. It is not surprising then that most provisions of the FAA envision limited court intervention into the arbitration process.

The Problem Of Unreasoned Reasoned Awards And The Judicial Failure To Remedy It: Statutory And Rule Solutions, John B. Mcarthur, Mark Travis

American University Business Law Review

American arbitrators have long been choosing between two common forms of awards: "reasoned awards" and "standard awards" with no reasons enumerated. Yet neither arbitration rules nor statutes define "reasoned award." This lack of guidance has gotten arbitration in trouble and threatens its ability to satisfy users' needs.

Digital Transformation Of The Maritime Labour Law : Srems Complaints & Claims Legal, Digital Solution, Case Study Of Morocco, Rida El Missaoui

World Maritime University Dissertations

This Master’s dissertation investigates the strong need to reform and digitalize the mechanisms of monitoring and follow-up of the on-board compliance on seafarer’s rights and obligations through a legal-digital tool.

Law, Conflict, And Hybrid Warfare: A Teaching Imperative For A Changing World, Cynthia Alkon, Andrea Kupfer Schneider

Faculty Scholarship

Lawyers increasingly find themselves at the frontlines of the battlefield, just not in the traditional sense. Hybrid warfare is a conflict form that combines traditional military offensive measures with nontraditional methods, including the harnessing of legal systems to achieve strategic goals. Lawyers have always been at the frontline of typical legal risk assessment, thinking about a client's risk of liability or regulation costs generally. Now, lawyers must stand at the ready for a lot more: lawyers must be prepared for cyber-attacks, disinformation campaigns using artificial intelligence, the use of court systems to suppress reporting or shield bad actors, and so …

"Arbitration In Name Only": A Race Claims Mismatch, Michael Z. Green

Faculty Scholarship

With arbitration's meteoric rise as a tool in resolving statutory employment discrimination matters beginning in the 1990s, concerns about lack of employee bargaining power received little consideration when raised in court challenges to the enforcement of employer-mandated agreements to arbitrate those claims. Only in rare circumstances, when an employer appeared to go to extremes in using its overwhelming bargaining power to implement an arbitration process so clearly unfair would a court find the agreement created an unfair "arbitration in name only" that should not be enforced. 

Employers have become savvier in how they require employees to agree to resolve discrimination …

Judging Judiciaries: How Sticky Defaults, Status Quo Bias, And The Sovereign Prerogative Influence The Perceived Legitimacy Of The New International Commercial Courts, S. I. Strong

Faculty Articles

Forum shopping is routinely criticized as contrary to procedural justice. However, recent years have seen an increasing number of jurisdictions engaged in the process of forum selling, in which countries actively seek to bring lucrative litigation business to their national judicial systems. One of the most common types of forum selling involves the creation of new international commercial courts designed to increase a nation’s competitiveness in the global litigation market.

Most studies of the new international commercial courts have focused on how procedural innovations adopted by different courts are likely to affect party choice. While useful, these analyses assume that …

Healing Communities With Police Divestment: Seeking Abolition Through Transformative Reform And Community-Government Collaboration, Jessica E. Gillson

Undergraduate Honors Theses

Concerns about the efficacy and sustainability of the U.S. carceral system have persisted throughout the country’s history, recently fueling renewed activism and bipartisan calls for reform. However, proposed solutions remain divisive. This thesis first defines the current status of our prison systems, then explores collaborative alternatives to incarceration and policing that support communities and break cycles of incarceration.

Focusing on partnerships among local governments, community organizations, justice-involved individuals, and law enforcement, this study examines holistic approaches to crime prevention, reentry, and reintegration. Using an interdisciplinary framework incorporating restorative justice, community resilience, and systems theory, it investigates how community-based strategies can …

The U.S. Supreme Court Decision In Smith V. Spizzirri: An Analysis Of Its Impact On Enforcing International Arbitration Agreements And Awards Falling Under The New York Convention In The United States, Charles E. Woode

Buffalo Law Review

This article provides a comprehensive analysis of the U.S. courts’ role in the interpretation, enforcement, and confirmation of international arbitration agreements and awards under the Federal Arbitration Act (FAA) and the New York Convention. It delves into the intricacies of FAA Chapters 1 and 2, which govern domestic and international arbitration respectively, and their interplay in shaping the arbitration landscape in the United States. Initially, this article addresses the significant circuit split regarding 9 U.S.C. § 3, which required clarification by the United States Supreme Court in Smith v. Spizzirri. The Court’s decision provided much-needed clarity on whether a district …

Restorative Justice In Legal Education, Lindsey Pointer, Aparna Polavarapu, Alanna Ojibway

Scholarly Works

No abstract provided.

Defining Arbitration, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

The Federal Arbitration Act (FAA) does not define the term “arbitration,” the very process the one-hundred-year-old statute was enacted to promote. The absence of a definition has led to courts' inconsistent and unpredictable application of the FAA's regulatory benefits to agreements to resolve disputes in processes other than traditional, binding arbitration, such as appraisal, evaluation, and mediation. Additionally, with no clear definition as guidance, companies have inserted arbitration clauses into adhesive consumer and employment agreements that require “arbitration” of disputes but designate a process lacking hallmarks of due process. The Supreme Court even justified enforcing class action waivers in arbitration …

Asking The Right Questions About Legal Finance In United States Aggregate Dispute Resolution, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Third-party legal finance is one of the most controversial modern developments in civil justice, both in the United States and across the globe. It is particularly controversial when mentioned in the same breath as aggregate litigation. Current debate trains on a series of repeated questions: whether and how to ban litigation finance in aggregate litigation; whether the use of litigation finance should be disclosed in discovery; and whether litigation finance is allowed under various (and often ancient) legal doctrines. Obscured from view is what I believe to be the most fundamental question: What is the proper role of litigation finance …

Securities Arbitration Case Law Update 2024–2025 (July 2025), Elissa Germaine, Anthony Rivera

Faculty Publications

(Excerpt)

This article summarizes recent cases regarding the constitutionality of FINRA and leading arbitration cases that are of particular relevance to securities arbitration practitioners.

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 26, Iss. 3

Cardozo Journal of Conflict Resolution

No abstract provided.

A Framework For Trauma-Informed Mediation: A Heart And Mind Approach To Conflict Resolution, Michael Saini, Raheena Lalani Dahya, Shely Polak

Cardozo Journal of Conflict Resolution

Unresolved trauma histories can have both short and long-term consequences on children and parents' overall functioning. Using a trauma-informed approach to mediation, we first briefly highlight the impactofadversechildhood experiencesandunresolvedtraumasonadults. We then consider the various vulnerabilities and activations presented within mediation and the fundamental principles of trauma-informed mediation to assist parties in remaining within the "window of tolerance" during the mediation. Trauma-informed mediation is an approach that encourages mediators to be aware of potential trauma activations and to engage in compassionate practices to allow parties to engage within their own individualized "window of tolerance" to resolve disputes. We explore the unique …