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 …
Cohabitation And The Restatement (Third) Of Restitution & Unjust Enrichment,
2011
American University Washington College of Law
Cohabitation And The Restatement (Third) Of Restitution & Unjust Enrichment, Candace Kovacic-Fleischer
Scholarly Articles in Law Reviews & Journals
The Restatement (Third) of Restitution & Unjust Enrichment clarified and modernized a field that had become muddled since the publication of the Restatement (First) in 1937. One area of modernization relates to the changes in law towards women, particularly changes in law toward female cohabitants. Published in 2011, the Restatement (Third) added a new Section 28, which rejected the view that it would be immoral for one cohabitant to bring suit against the other, and relaxed the restriction on recovery in unjust enrichment for "gratuitous" contributions. This Article reviews societal and legal changes for women since 1937 and notes that, …
William Howard Taft And The Taft Arbitration Treaties,
2011
California Western School of Law
William Howard Taft And The Taft Arbitration Treaties, John E. Noyes
Faculty Scholarship
Part I of this Essay explains Taft's interest in international law, placing it in historical context. Part II, outlines key features of the treaties and explores the debate over their ratification. Part III then reflects on the significance of the treaties.
De Novo A No No: Contractually Expanded Judicial Review Clauses Do Not Preclude Faa Application In State Court Unless The Parties Make It Intentionally Clear The Faa Does Not Apply In Their Agreement - Raymond James Fin. Servs., Inc. V. Honea,
2011
University of Missouri School of Law
De Novo A No No: Contractually Expanded Judicial Review Clauses Do Not Preclude Faa Application In State Court Unless The Parties Make It Intentionally Clear The Faa Does Not Apply In Their Agreement - Raymond James Fin. Servs., Inc. V. Honea, Tom Swoboda
Journal of Dispute Resolution
This Note addresses a recent Alabama Supreme Court decision concerning the issue of contracted appellate review in arbitration agreements. After analyzing the history of enforcement of arbitration agreements between contracting parties in U.S. Supreme Court precedent, this Note will explore the most recent Supreme Court decision regarding when parties may seek judicial review of arbitration awards. The Federal Arbitration Act's (FAA) preemptive effect over state court law will also be addressed, as the Supreme Court was not thoroughly explanatory on the issue. This Note will also evaluate and compare another state court ruling in Pennsylvania on the same judicial review …
Lost In Translation: Can Exporting Adr Harm Rule Of Law Development,
2011
Texas A&M University School of Law
Lost In Translation: Can Exporting Adr Harm Rule Of Law Development, Cynthia Alkon
Journal of Dispute Resolution
This article will begin with a brief explanation of rule of law development work. Section III will describe the role of legitimacy in developing rule of law. Section IV will discuss some examples of how ADR programs are typically included in rule of law development work. Section V will discuss when promotion of ADR programs may work against the development of rule of laws, specifically when ADR might seem more like a new form of corruption or when it might reinforce already existing bad practices. Section VI will offer some questions for ADR and rule of law development practitioners to …
New Twist On An Old Approach: Missouri's Use Of Unconscionability And Consent In The Class Arbitration Waiver Analysis - Brewer V. Missouri Title Loans, Inc., A,
2011
University of Missouri School of Law
New Twist On An Old Approach: Missouri's Use Of Unconscionability And Consent In The Class Arbitration Waiver Analysis - Brewer V. Missouri Title Loans, Inc., A, Whitney Hampton
Journal of Dispute Resolution
In recent years, the inclusion of arbitration agreements in consumer product contracts has become increasingly popular. In an effort to shield themselves from the damaging effects of expensive class action suits by consumers, many companies have begun to include class arbitration waivers in their contracts, which effectively mandate individual arbitration. These arbitration agreements were initially met with optimism. However, courts have seemingly developed a sense of disdain toward them because of their apparent ability to perpetuate disreputable business practices. This has left many courts searching for ways to invalidate class arbitration waivers.
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 …
Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical-Malpractice Claims In Florida,
2011
Duke Law School
Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical-Malpractice Claims In Florida, Neil Vidmar, Mirya Holman, Paul Lee
Faculty Scholarship
No abstract provided.
The Remedy Gap: Institutional Design, Retaliation, And Trade Law Enforcement,
2011
Duke Law School
The Remedy Gap: Institutional Design, Retaliation, And Trade Law Enforcement, Rachel Brewster
Faculty Scholarship
One of the major innovations of the World Trade Organization’s (“WTO”) Dispute Settlement Understanding (“DSU”) is the regulation of sanctions in response to violations of trade law. The DSU requires governments to receive multilateral approval before suspending trade concessions and limits the extent of retaliation to prospective damages. In addition, the DSU permits governments to impose only conditional sanctions: sanctions for violations that continue after the dispute resolution process is complete. This enforcement regime creates a remedy gap: governments cannot respond, even to obvious breaches, until the end of the dispute resolution process (and then only to the extent of …
Opening Remarks,
2011
Columbia University
Opening Remarks, Peter T. Coleman
Cardozo Journal of Conflict Resolution
No abstract provided.
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 …
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 …
Letting The Arbitrator Decide Unconscionability Challenges, 26 Ohio St. J. On Disp. Resol. 1 (2011),
2011
UIC School of Law
Letting The Arbitrator Decide Unconscionability Challenges, 26 Ohio St. J. On Disp. Resol. 1 (2011), Karen H. Cross
UIC Law Open Access Faculty Scholarship
This article examines how courts are allocating jurisdictional questions relating to unconscionability to the arbitrator, and assesses the approach of U.S. courts to this issue from a historical and comparative perspective. The U.S. allocation rule is evolving toward one of deference to the arbitrator, allowing the arbitrator to make an initial determination of whether there is an enforceable agreement to arbitrate. As a matter of timing, the U.S. approach is becoming more similar to that of France. Such an approach, especially in the commercial sphere, has the potential to be relatively efficient and consistent. But in the context of mandatory …
Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll V. Beardon, 59 Clev. St. L. Rev. 693 (2011),
2011
John Marshall Law School
Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll V. Beardon, 59 Clev. St. L. Rev. 693 (2011), Julie M. Spanbauer
UIC Law Open Access Faculty Scholarship
The 1963 decision of the Supreme Court of Montana in Carroll v. Beardon occupies less than three full pages in the Pacific Reporter and involves a simple real estate transaction in which a "madam" sold a house used for prostitution to another "madam." The opinion is the last in a long line of cases which speak specifically to the issue of enforcement of facially legitimate contracts that in some manner involve or are related to prostitution. It is commonly cited in treatises and hornbooks as representative of the movement by courts toward enforcement of such contracts under the law of …
Court-Connected Mediation And Minorities: A Report Card,
2011
Mitchell Hamline School of Law
Court-Connected Mediation And Minorities: A Report Card, Sharon Press
Faculty Scholarship
Critical race theorists have raised important concerns about alternative dispute resolution in general and mediation specifically. Many of the critiques were written prior to the ascendency of court-connected mediation. To set the context, Part II of this article begins with a brief history of the court-connected mediation movement in the United States. In Part III, the critiques of mediation, specifically focusing on those related to minorities, are summarized. Part IV identifies some of the flaws in the critiques as related to court-connected mediation. Part V includes actions that court programs can undertake to address the issues raised by the critiques …
Getting Good Results For Clients By Building Good Working Relationships With 'Opposing Counsel',
2011
University of Missouri School of Law
Getting Good Results For Clients By Building Good Working Relationships With 'Opposing Counsel', John M. Lande
Faculty Publications
Lawyers’ relationships with their “opposing counsel” make a big difference in how well they handle their cases. “Opposing counsel” often do oppose each other, sometimes quite vigorously, though they also regularly cooperate with each other. In the normal course of litigation, lawyers need to cooperate on many procedural matters. In some cases, they also cooperate to achieve their respective clients’ substantive interests. If the lawyers have a bad relationship, the case is likely to be miserable for everyone involved. If they have a good relationship, they are more likely to agree on procedural matters, exchange information informally, take reasonable negotiation …
