Dispute Resolution and Arbitration Commons^™

Convergence And Divergence In International Dispute Resolution Symposium, Peter Rutledge

Journal of Dispute Resolution

This symposium submission draws heavily on law and economic literature to develop its thesis. Part I lays out the literature behind the parties' choice to opt for arbitration. It also builds upon that literature by attempting to sketch out some preliminary reasons why parties might opt for arbitration over another form of dispute resolution. Part II charts how, along various axes, arbitration has begun to converge with litigation - thereby depriving it of a comparative advantage that it once enjoyed - due to innovations in arbitration and innovations in the field of international civil litigation. In brief, the traditional advantages …

Introduction To The Court Of Arbitration For Sport (Cas) & The Role Of National Courts In International Sports Disputes, An Symposium, Louise Reilly

Journal of Dispute Resolution

The founding purpose of the Court of Arbitration for Sport (CAS) was to take international sports disputes out of national courts and provide a highly specialized forum where those disputes could be heard and decided, quickly and inexpensively, according to a flexible procedure. Since its inception, CAS has gained the recognition and trust of the international sports community and today, is the last instance of appeal for parties involved in a wide-range of sports-related disputes, including those related to all Olympic sports and many non-Olympic sports, football disputes, doping infractions and international commercial contracts. CAS has come to provide sportsmen …

United States Supreme Court And Class Arbitration: A Tragedy Of Errors, The Symposium, Gary Born, Claudio Salas

Journal of Dispute Resolution

This Essay describes and critiques the U.S. Supreme Court's recent misadventures with class arbitration. First, the Essay reviews the origins and rise of class arbitration under the FAA, particularly following the Supreme Court's Bazzle decision. In Part II, the Essay discusses application of the unconscionability doctrine to class action waivers, under the California courts' Discover Bank doctrine. In Part III, the Essay recounts the Supreme Court's retrenchment from class arbitration in Stolt-Nielsen and, more fully, in Concepcion. It also critiques the Court's apparent analysis in Concepcion and offers an alternative analysis for the Concepcion result that is more consistent with …

Court Intervention In International Arbitration: The Case For Compulsory Judicial Internationalism Symposium, Frederic Bachand

Journal of Dispute Resolution

Part I sets out in more detail the proposed interpretive rule. It does so by explaining why the relevant international normative context should always matter when courts are called upon to resolve questions of international arbitration law to which local sources provide no clear answers. In Part H, I address the issue of how precisely that context ought to bear upon the interpretive process. In doing so, I highlight some important distinctions regarding how that context should bear upon the courts' reasoning depending on whether the issue in dispute is governed by uniform law instruments-such as the New York Convention …

Concerning Preemption: Upholding Consent Under The Federal Arbitration Act Note, Shane Blank

Journal of Dispute Resolution

AT&T Mobility LLC v. Concepcion represents the latest failed effort by a state to assert some level of control over consensual arbitration agreements. It also represents an affirmation by the U.S. Supreme Court of a long-standing notion that arbitration agreements, standing on equal footing with other contracts, must be enforced according to their terms-holding consent to be the paramount consideration in judicial analysis. This note will examine the lengthy history of the FAA's preemptive power under the Supremacy Clause, explore the U.S. Supreme Court's time-honored rationale for choosing when to exercise its preemptive powers to invalidate state law, and evaluate …

Sovereignty And The Promotion Of Peace In Non-International Armed Conflict, Anna Spain

Publications

No abstract provided.

The Role Of Equipoise In Family Law, Deborah Cantrell

Publications

Scholars reviewing family law over the last twenty years have described the field as having undergone a revolution. While true, both scholars and front-line family law advocates have failed to invent a satisfying end to the revolution. This Article takes up that challenge and offers a novel way forward, It identifies two translation challenges that have prevented the revolution from reaching its end. The first challenge is translating reform so that its benefits accrue equally across all kinds of participants--rich and poor, those with lawyers and those without. The second challenge is translating theory into on-the-ground practices useful to family …

The Politics Of Class Action Arbitration: Jurisdictional Legitimacy And Vindication Of Contract Rights, William W. Park

Faculty Scholarship

Exactly one year apart, the U.S. Supreme Court decided two cases on “class arbitration” proceedings, one about international shipping and the other on consumer purchases of mobile telephones. Each decision inflicted damage on a claimant’s right to invoke collective action in arbitrations. Read together, the opinions serve as a prism through which to refract key elements in an increasingly politicized debate on the legal framework for arbitration, particularly within the United States.

A Trilogy Of "Difficult And Complex" Arbitration Issues In 2012, Darius Chan

Research Collection Yong Pung How School Of Law

At the end of 2011, the Singapore High Court in Re David Joseph QC [2011] SGHC 262 (per VK Rajah JA) permitted the admission of an English Queen’s Counsel, David Joseph QC, to represent eight entities of the Astro Group, a Malaysian broadcasting and media entity, in proceedings arising from an arbitration with three subsidiaries of Indonesia’s Lippo Group. Under Singapore’s current statutory scheme, the court may admit QCs on an ad hoc basis if a matter contains issues of fact or law of “sufficient difficulty and complexity”, and if the circumstances of the case warrant it. The High Court …

There Is A World Elsewhere: Preliminary Studies On Alternatives To Interest-Based Bargaining, F. Peter Philips

Articles & Chapters

Studies of selected ancient dispute resolution methods suggest that interest-based bargaining is culturally specific and may be inapplicable in societies where individual gratification is not as highly valued as social harmony or spiritual coherence.

Securing Natural Justice In Arbitration Proceedings, Austin Ignatius Pulle

Research Collection Yong Pung How School Of Law

The legitimacy and integrity of any system that adjudicates the rights and duties ofpersons would be evaluated by reference to the standards required by the principles of natural justice. Arbitration is becoming more popular as a system of dispute resolution because of the exponential increase of cross-border transactions that are a feature of globalization. Now arbitrations take place in countries that lack a well-developed arbitration culture. Courts in some of these countries have yet to develop a coherent body of law that clarifies and gives effect to the principles of natural justice. Moreover, important values protected by natural justice principles …

Arbitrating Trade Disputes (Who's The Boss?), Petros C. Mavroidis

Faculty Scholarship

World Trade Organization (“WTO”) dispute settlement has attracted a lot of interest over the years and there is a plethora of academic papers focusing on various aspects of this system. Paradoxically, there is little known about the identity of the WTO judges: since, at the end of the day, the WTO has evolved into the busiest forum litigating state-to-state disputes. There are many writings regarding the appointment process in other international tribunals. At the risk of doing injustice to many papers on this issue, we should mention the following works: Terris et al. look at various courts and especially those …

One (Firm) Is Not Enough: A Legal-Economic Analysis Of Ec-Fasteners, Chad P. Brown, Petros C. Mavroidis

Faculty Scholarship

The WTO’s Appellate Body (AB) dealt with a number of issues for the first time in the Report of EC-Fasteners. Importantly, the AB discussed the consistency of the European Union (EU) regulation with the multilateral rules on the conditions for deviating from the obligation to calculate individual dumping margins. Although China formally won the argument, the AB may have opened the door to treat China as a non-market economy (NME) even beyond 2016 when China’s NME-status was thought to expire under the terms of China’s 2001 WTO Accession Protocol. The AB further dealt with numerous other issues ranging from statistical …

Arbitrability Trouble, George A. Bermann

Faculty Scholarship

The general notion of arbitrability is practically as old as arbitration itself, and yet it remains profoundly misunderstood, at least in U.S. arbitration law. For many – particularly outside the United States – arbitrability has a single and very precise meaning, signifying the legal capacity of a claim or dispute to be the subject of arbitration rather than litigation or, to borrow the language of the UNCITRAL Model Law and the New York Convention, signifying that a claim or dispute is “legally capable of being arbitrated.” By this understanding, a claim or dispute is “non-arbitrable” within a given legal system …

Mediation And The Neocolonial Legal Order: Access To Justice And Self-Determination In The Philippines, Eduardo R.C. Capulong

Faculty Law Review Articles

In this article, the author examines how the process of U.S.-style alternative dispute resolution is unfolding in the Philippines, a former U.S. colony.

Drawing from representative case studies, Part I highlights emerging practices in the global South counter-hegemonic to the fundamentals of U.S.-style mediation.

Part II describes the Philippine community mediation experience, in particular the ideologies, structures, and practices of indigenous dispute resolution, the neighborhood justice system, and court-annexed mediation.

Part III discusses access to justice and self-determination as they relate specifically to community mediation in a postcolonial context.

Using qualitative research the author conducted in the Philippines in 2010, …

An Analysis Of Protests Carried Out By Ships (Pcs) : Should Pcs Be Regulated By A New Imo Instrument?, Waldemar A. Wichmann

World Maritime University Dissertations

This paper attempts to analyze protests1 carried out by ships as acts of objection in the exercise of the human right to protest. The purpose of the analysis is to find out whether protests carried out by ships have recognition and legitimation in the maritime industry. Also, considering the one proposal to regulate this maritime activity at the International Maritime Organization (IMO), the analysis attempts to find out whether a new maritime instrument such a Code of Conduct is necessary. This academic exercise takes the reader from the analysis of the reasons why people protest and the right to protest …

The Issues Of Access To Justice In The Case Of Dispute Resolution Within The Indigenous Community Of Tulehu, Central Maluku, Lidwina Inge Nurtjahyo

Indonesia Law Review

This study is aimed to analyze how customary law is practiced in strategizing dispute settlement among the villagers. In some cases, the parties who had the disputes brought their cases to the non states intermediaries to give the best remedies that fulfill their own senses of justice. As we know in the Access to Justice approaches, the disputes could be solved not only using both with state law and non-state law. These facts showed how people doing law community members in relation to dispute resolution mechanism based on customary law from the perspective of access to justice. By applying customary …

Reflecting On Appeals On Questions Of Law Arising Out Of Domestic Arbitration Awards, Darius Chan, Paul Tan

Research Collection Yong Pung How School Of Law

Domestic arbitration awards rendered under the Arbitration Act (Cap 10, 2002 Rev Ed) (“the Act”) can be subject to appeal on a question of law arising out of an award. Unless parties consent, an appeal can only be brought with the leave of court.

Arbitration And Antitrust: Navigating The Contours Of Mandatory Law, Charles H. Brower Ii

Law Faculty Research Publications

No abstract provided.

Arbitration And Antitrust: Navigating The Contours Of Mandatory Law, Charles H. Brower Ii

Buffalo Law Review

No abstract provided.