Dispute Resolution and Arbitration Commons^™

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 …

Advisory Adjudication, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring …

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 "Gateway" Problem In International Commercial Arbitration, George A. Bermann

Faculty Scholarship

Participants in international commercial arbitration have long recognized the need to maintain arbitration as an effective and therefore attractive alternative to litigation, while still ensuring that its use is predicated on the consent of the parties and that the resulting awards command respect. A priori, at least, all participants – parties, counsel, arbitrators, arbitral institutions – have an interest in ensuring that arbitration delivers the various advantages associated with it, notably speed, economy, informality, technical expertise, and avoidance of national fora, while producing awards that withstand judicial challenge and otherwise enjoy legitimacy.

National courts play a potentially important policing role …

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 …

Tribal Rituals Of The Mdl: A Comment On Williams, Lee, And Borden, Repeat Players In Multidistrict Litigation, Myriam E. Gilles

Articles

No abstract provided.

Navigating Eu Law And The Law Of International Arbitration, George A. Bermann

Faculty Scholarship

The European Union and international arbitration are two robust legal regimes that have managed to develop largely in accordance with their own respective “first principles,” and they have accordingly thrived. This article initially explains why that has been the case.

But the era of parallelism between the regimes has ended, and rather suddenly. This article identifies the two principal fronts on which tensions between EU law and international arbitration law have emerged. Interestingly, both commercial and investment arbitration are implicated.

A first front entails a conflict between the European Court of Justice's (ECJ's) expansive notions of EU public policy and …

'Domesticating' The New York Convention: The Impact Of The Federal Arbitration Act, George A. Bermann

Faculty Scholarship

Much as one may try to universalize and even ‘de-nationalize’ international commercial arbitration – whether through Conventions, uniform or model laws or soft law – the phenomenon remains profoundly affected by national law and policy. That is indeed very much one of the leitmotifs of this book.

The incongruities – big and small – between domestic and international arbitration regimes typically present themselves on a purely ad hoc basis; that is to say, in specific and often isolated contexts, as when a particular case in a national court produces a result that looks anomalous from the point of view of …

Arbitration In The Roberts Supreme Court, George A. Bermann

Faculty Scholarship

The Supreme Court’s most recent set of arbitration law rulings — Stolt-Nielsen, S.A. v. AnimalFeeds Int’l, Rent-A-Center West v. Jackson, and AT&T Mobility v. Concepcion — merits all the attention it has been receiving. Taken collectively, the three decisions evidence the powerful commitment of a Supreme Court majority to arbitration as an alternative form of dispute resolution — a commitment so strong as to override important consumer welfare interests. At a minimum, the trilogy erects substantial barriers to the conduct of class arbitration, a form of arbitration that consumer advocates regard as essential to protecting consumer welfare.

In …

Thoughts On Arbitrator Selection: Why My Father Was (Usually) A Good Choice, Robert H. Smit

Faculty Scholarship

Many of the letters, cards and emails of condolence that I received after my father, Professor Hans Smit, passed away last year were from lawyers who had appeared before my father, serving as arbitrator, in international arbitrations. Most said very nice things about my father, some over the top: “worthy of canonization,” “a force of nature,” “Odysseus,” an “icon.” Others were kind but more restrained (coming perhaps from attorneys whose clients fared less well before my father): “creative,” “indomitable,” “fair but scary.” One of my favorites, from a non-native English speaker, was even more neutral, describing my father simply as …

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 …

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 …

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.

Investment Treaty Disputes: Ideological Fault Lines And An Evolving Zeitgeist, Locknie Hsu

Research Collection Yong Pung How School Of Law

The zeitgeist of the 21st century in the field of investment treaty arbitrations comprises a rise in the number of such arbitrations and accompanying observations on the unwieldy jurisprudential effects of such a rise. The international investment arbitration community is alive with discussion over these effects, which discussion includes an examination of the value of prior awards as precedents.' The existing regime based on treaty interpretation clearly provides no formal system of precedent and the 'players' (read: arbitrators) change from dispute to dispute as investment arbitration tribunals do not fall within a single, neat judicial hierarchical system. With the number …

Judges Mediate And Do Other Things – Whether We Like It Or Not, Nadja Alexander

Research Collection Yong Pung How School Of Law

This post on the Kluwer Mediation Blog focuses on active judges who mediate or engage in some type of mediative intervention and explains the developing field of judicial dispute resolution (JDR).

Setting Aside An International Arbitration Award Based On Deficient Pleadings, Darius Chan

Research Collection Yong Pung How School Of Law

No abstract provided.

Legislative Study: A Framework To Strengthen Massachusetts Community Mediation As A Cost-Effective Public Service, Susan Jeghelian, Madhawa Palihapitiya, Kaila Eisenkraft

Massachusetts Office of Public Collaboration Publications

This report presents a study of community mediation commissioned by the Massachusetts Legislature in July 2011. The study was conducted by the state office of dispute resolution now known as the Massachusetts Office of Public Collaboration at the University of Massachusetts Boston. The office has been serving as a neutral forum and state-level resource for over 20 years. Its mission is to establish programs and build capacity within public entities for enhanced conflict resolution and intergovernmental and cross-sector collaboration in order to save costs and enable effective problem-solving and civic engagement on major public initiatives.

The report is based on …