Alternative Dispute Resolution Expands Into Pre-Trial Practice: An Introduction To The Role Of E-Neutrals,
2011
Thomas Goode Jones School of Law
Alternative Dispute Resolution Expands Into Pre-Trial Practice: An Introduction To The Role Of E-Neutrals, Allison O. Skinner
Cardozo Journal of Conflict Resolution
Alternative dispute resolution is a viable tool for case management. The use of a third party neutral for resolving discovery disputes and related pre-trial issues offers litigants an alternative for managing the pre-trial phase of a lawsuit in an efficient manner. Alternative dispute resolution is expanding into pre-trial practice in response to two forces: 1) Judicial budgetary constraints; and 2) E-discovery. Both factors require litigants to approach discovery in a manner that meets Federal Rule of Civil Procedure 1-"just, speedy and inexpensive determination of every action and proceeding"-and Federal Rule of Civil Procedure 37-"Failure to Make Disclosures or to Cooperate …
A Delayed Penalty: The Implications Of The Ilya Kovalchuk Arbitration Decision On The National Hockey League, 45 J. Marshall L. Rev. 145 (2011),
2011
UIC School of Law
A Delayed Penalty: The Implications Of The Ilya Kovalchuk Arbitration Decision On The National Hockey League, 45 J. Marshall L. Rev. 145 (2011), Morgan Marcus
UIC Law Review
No abstract provided.
Establishing Claims For Damages, Costs And Interest In International Arbitration,
2011
High Court, London, England
Establishing Claims For Damages, Costs And Interest In International Arbitration, Sir Vivian Ramsey
American University International Law Review
No abstract provided.
Canada And Investment Treaty Arbitration: Three Prominent Issues - Icsid Ratification, Constituent Subdivisions, And Health And Environmental Regulation,
2011
University of South Carolina
Canada And Investment Treaty Arbitration: Three Prominent Issues - Icsid Ratification, Constituent Subdivisions, And Health And Environmental Regulation, Barry Leon, Andrew Mcdougall, John Siwiec
South Carolina Journal of International Law and Business
No abstract provided.
Overview Of International Arbitration In The Intellectual Property Context,
2011
Kirkland & Ellis LLP
Overview Of International Arbitration In The Intellectual Property Context, Kenneth R. Adamo
Global Business Law Review
Resolving intellectual property rights (“IPR”) issues through alternative dispute resolution (“ADR”) proceedings was a technique long-developing in many major countries. Despite the earlier presence of the Arbitration Act in United States law, the subject of use of arbitration in IPR situations, especially regarding U.S. patents, remained an open and contested issue, until the original addition of 35 U.S.C. § 294 to the U.S. Patent Act in 1982. U.S. law is now resolved in the availability of IPR arbitration as an ADR tool, either through a “pre-problem” contract, such as a license, or as a “post-problem” mechanism elected and/or established by …
Is International Arbitration Becoming Too American?,
2011
Squire, Sanders, and Dempsey
Is International Arbitration Becoming Too American?, George M. Von Mehrem, Alana C. Jochum
Global Business Law Review
This article will discuss the emerging trend of Americanization of international arbitration. As American companies and law firms become more involved in international arbitration, the process has developed to include some of the procedural techniques common to the American courtroom. But other aspects of American litigation are not part of the process. Has this made international arbitration a more effective means of resolving disputes? What should American companies and their lawyers know about the process in order to participate successfully?
Freedom And Governance In U.S. Arbitration Law,
2011
Penn State Dickinson
School of Law
Freedom And Governance In U.S. Arbitration Law, Thomas E. Carbonneau
Global Business Law Review
Professor Carbonneau will discuss the possible impact of recent United States Supreme Court decisions on international arbitration. The opinions he will refer to could indicate a reversal of the Court’s position on arbitration that would undermine arbitration’s prominence as a means of resolving international commercial disputes. He will then discuss the negative effects international commerce could experience as a consequence.
Jurisdiction Issues In International Arbitration,
2011
Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo
Jurisdiction Issues In International Arbitration, Mitchell L. Lathrop
Global Business Law Review
Arbitration, and particularly international arbitration, involves jurisdictional issues beyond those normally encountered in traditional judicial proceedings. This article will describe prominent jurisdictional issues in international arbitration based on recent pronouncements of judicial and arbitral authorities. From effecting notice of the arbitration proceedings to the improper composition of the arbitral authority, this article will discuss jurisdictional issues that can arise at any time during an arbitration proceeding, and how they can affect the enforcement of an award.
Piercing The Corporate Veil In International Arbitration,
2011
Cleveland State University
Piercing The Corporate Veil In International Arbitration, Yaraslau Kryvoi Ph.D.
Global Business Law Review
This article examines the application of the piercing the corporate veil concept in international arbitration. Interpretation of this concept is inconsistent even within one domestic legal system, and it is even less predictable in international arbitration when several legal systems come into play. Piercing the corporate veil may help to give a concrete practical meaning to the purpose of an arbitration agreement or a bilateral investment treaty. However, there are downsides of such piercing because it negates many of the benefits which the corporate form offers. Domestic courts are likely not to recognize and enforce an arbitration award piercing the …
How Developing Countries Can Adapt Current Bilateral Investment Treaties To Provide Benefits To Their Domestic Economies,
2011
Cleveland State University
How Developing Countries Can Adapt Current Bilateral Investment Treaties To Provide Benefits To Their Domestic Economies, Joshua Boone
Global Business Law Review
Bilateral investment treaties (hereinafter "BIT") have been created with the goal of promoting economic prosperity through the facilitation of international investment flows. The idea was to facilitate these investment flows by the opening up of secure channels for foreign direct investment (hereinafter "FDI"), stabilizing the investment climate, granting protective investment guarantees, and providing neutral dispute mechanisms for "injured" investors. Since their inception in 1959, BITs have experienced a "massive and sudden proliferation . . . which has been . . . a 'remarkable' event in international law[,]" and as of the end of 2008, there were over 2,600 BITs in …
"Brother, Can You Spare A Dime?" Technology Can Reduce Dispute Resolution Costs When Times Are Tough And Improve Outcomes,
2011
Mitchell Hamline School of Law
"Brother, Can You Spare A Dime?" Technology Can Reduce Dispute Resolution Costs When Times Are Tough And Improve Outcomes, David Allen Larson
Faculty Scholarship
Cost reduction is one of the desirable results frequently attributed to Alternative Dispute Resolution (ADR) processes. Although it is reasonable to assume that businesses always are interested in saving money, this goal takes on added importance when the economy is struggling. The cost savings inherent in ADR, which already are significant, can be increased substantially through the strategic adoption of technology. Although I generally do not urge caution when it comes to expanding the ways in which we use technology, we nonetheless must recognize not only technology’s potential benefits but also its possible pitfalls. It is relatively easy to identify …
Defining Civil Disputes: Lessons From Two Jurisdictions,
2011
Southern Methodist University, Dedman School of Law
Defining Civil Disputes: Lessons From Two Jurisdictions, Elizabeth G. Thornburg, Camille Cameron
Faculty Journal Articles and Book Chapters
Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …
Regulating Mandatory Arbitration,
2011
University of Georgia School of Law
Regulating Mandatory Arbitration, Thomas V. Burch
Scholarly Works
Over the last twenty-five years, the Supreme Court has relied on party autonomy and the national policy favoring arbitration to expand the Federal Arbitration Act’s scope beyond Congress’s original intent. Choosing these loaded premises has allowed the Court to reach the outcomes it desires while denying that it is making any political or moral judgments in its decisions – a type of bureaucratic formalism. One controversial outcome of the Court’s formalism, overall, has been the increased prevalence of mandatory arbitration. Although it reduces judicial caseloads and lowers companies’ dispute-resolution costs, it also restricts or eliminates individual rights and reduces public …
Opening Remarks,
2011
Columbia University
Opening Remarks, Peter T. Coleman
Cardozo Journal of Conflict Resolution
No abstract provided.
Methodology In Action: On Consistency, Accuracy And Proficiency In Mediation,
2011
Creighton University School of Law
Methodology In Action: On Consistency, Accuracy And Proficiency In Mediation, Ran Kuttner
Cardozo Journal of Conflict Resolution
Over seventeen years have passed since the first edition of Bush & Folger's The Promise of Mediation. Edited by Bush and Folger together with Dorothy Della Noce, Transformative Mediation: A Sourcebook - Resources for Conflict Intervention Practitioners and Programs offers a new and important contribution to our understanding of the promise of mediation, this time not necessarily because of the particular ideology of the transformative approach, but because of the manner in which this volume demonstrates how mediation scholarship can further develop mediation proficiency. The promise of mediation and the future of its institutionalization as a respected, distinct profession …
Courageous Conversations: Aligning The Occupy Wall Street And The Mediation Movements,
2011
San Francisco Community Boards
Courageous Conversations: Aligning The Occupy Wall Street And The Mediation Movements, Raymond Shonholtz
Cardozo Journal of Conflict Resolution
Originally prepared as a speech for the Oregon Mediation Conference, November 2011, the following has been modified for a wider audience concerned about the role of mediators and the mediation movement in relation to the Occupy Wall Street Movement ("OWS"). The author's intent is to provide a context for supporting the "courageous conversations" (theme of the Oregon Mediation Association Conference) of OWS by mediation and change management experts. The following was written a month after the Oregon Mediation Association speech and reflects comments made to the author to elaborate on the mediating modalities that might be useful to both OWS …
Mediation: A Revolutionary Process That Is Replacing The American Judicial System,
2011
Yeshiva University, Cardozo School of Law
Mediation: A Revolutionary Process That Is Replacing The American Judicial System, Richard M. Calkins
Cardozo Journal of Conflict Resolution
It has been said that the American judicial system is the finest yet devised by mankind. It seeks the truth in all instances and to do justice to all who enter its hallowed halls. Indeed, Americans not only have the right of access to civil courts but also to be judged by their peers in all federal courts and in most state courts. So fundamental is the right to trial by jury that it is enshrined in the Bill of Rights to the United States Constitution. The Seventh Amendment assures that all persons being heard in federal courts have the …
The Ongoing Debate About Mediation In The Context Of Domestic Violence: A Call For Empirical Studies Of Mediation Effectiveness,
2011
Yeshiva University, Cardozo School of Law
The Ongoing Debate About Mediation In The Context Of Domestic Violence: A Call For Empirical Studies Of Mediation Effectiveness, Susan Landrum
Cardozo Journal of Conflict Resolution
In Part I, this Article will explore the potential challenges of mediating family law cases involving domestic violence, including definitional challenges, process issues, outcome issues, and public policy implications. Concerned about the implications of this trend for domestic violence victims, state legislatures, courts, and mediation programs have sought to develop improved processes for fair and safe family law mediations, and the Article will analyze the most common of those processes in Part II. Additionally, Part III will describe what scholars have done to determine the effectiveness of mediation programs in addressing domestic violence issues and will advocate further empirical research …
Comments To The Consumer Financial Protection Bureau In Connection With Its Review Of Arbitration For Consumer Financial Products Or Services,
2011
Yeshiva University, Cardozo School of Law
Comments To The Consumer Financial Protection Bureau In Connection With Its Review Of Arbitration For Consumer Financial Products Or Services, Edna Sussman
Cardozo Journal of Conflict Resolution
This report is submitted by the Dispute Resolution Section of the New York State Bar Association to provide background and highlight issues the Bureau may wish to consider in fulfilling its charge. The report takes no position as to the appropriate treatment of consumer disputes, but strongly supports a thorough examination of dispute resolution processes to ensure that they are in the public interest and fair to consumers.
Negotiating The Wind: A Framework To Engage Citizens In Siting Wind Turbines,
2011
Vermont Law School
Negotiating The Wind: A Framework To Engage Citizens In Siting Wind Turbines, Sean F. Nolon
Cardozo Journal of Conflict Resolution
In Section I, this Article explores the promotion of wind energy by looking at the current system of incentives and regulations, including the authority to mitigate adverse impacts. In Section II, the Article looks at the role of citizens in siting generally, how involvement can turn into opposition, and how that opposition can be managed productively. Section III explores three approaches to citizen engagement that have been used for decades-participatory planning, negotiated rulemaking and facility siting. Finally, Section IV provides a framework for the federal government to work cooperatively with state and local governments to create comprehensive wind energy plans …
