Dispute Resolution and Arbitration Commons^™

Structural Obstacles To Settlement Of Land Use Disputes, Stewart E. Sterk

Articles

In many states, legal doctrine discourages settlement of land use litigation by requiring that any settlement undergo the same review process as the decision that led to the litigation in the first place. The problem is exacerbated by broad standing rules that allow a variety of parties to challenge the settlement. As a result, municipalities and developers often have an incentive to litigate to judgment, even though both parties would prefer a negotiated or mediated solution.

On the other hand, permitting developers and municipalities to settle litigation behind closed doors could impair both the quality and the legitimacy of the …

Reconciling European Union Law Demands With The Demands Of International Arbitration, George A. Bermann

Faculty Scholarship

European Union ("EU" or "Union") law and the law of international arbitration have traditionally occupied largely separate worlds, as if arbitral tribunals would rarely be the fora for the resolution of EU law claims and as if EU law, in turn, had little concern with arbitration. For several reasons, this pattern has recently been altered, although the relationship between EU law and international arbitration law is at present anything but settled. From the present perspective, the past looks like an age of innocence, for as these two worlds have begun to intersect, they have not done so entirely harmoniously.

Part …

Introductory Note To The International Centre For Settlement Of Investment Disputes: Aes Summit Generation Ltd. V. Republic Of Hungary, Charles O. Verrill Jr.

Faculty Scholarship

No abstract provided.

The Wto Dispute Settlement System 1995-2010: Some Descriptive Statistics, Henrik Horn, Louise Johannesson, Petros C. Mavroidis

Faculty Scholarship

The Dispute Settlement (DS) system is a central feature of the World Trade Organization (WTO) Agreement. This compulsory and binding two-level mechanism for the adjudication of disputes between WTO Members is the most active among international courts. The functioning of the DS system has attractive research interest among both lawyers and economists. This paper reports some descriptive statistics of the working of the DS system based on the recently updated Horn and Mavroidis WTO Dispute Settlement Data Set. The data set covers all 426 WTO disputes initiated through the official filing of a Request for Consultations from January 1, 1995, …

Mediation Representation: Representing Clients Anywhere, Harold Abramson

Scholarly Works

No abstract provided.

Les Devoirs De L'Arbitre: Ni Un Pour Tous, Ni Tous Pour Un, William W. Park

Faculty Scholarship

Fans of the Alexandre Dumas novel Three Musketeers will remember that the adventure includes a fourth young man, d'Artagnan, who hopes to become one of the King’s guards, along with his friends Athos, Porthos, and Aramis, living by the motto “All for one, one for all”. Likewise, an arbitrator’s generally include four key obligation: accuracy, fairness, and efficiency, as well as vigilance in promoting an enforceable award. Prevailing litigants normally hope that the arbitral process will lead to something more than a piece of paper. To this end, they expect arbitrators to avoid giving reasons for annulment or non-recognition to …

Maintaining And Enhancing The Integrity Of Adr Processes: From Principles To Practice Through People, Kellam, Nadja Alexander, Nadja Marie Alexander, Andrew Bickerdike, Andrew Greenwood, Margaret Halsmith, Norah Hartnett, Ian Hanger Hanger, Tom Howe, Elizabeth Kelly, Stephen Lancken, Gaye Sculthorpe, Lindsay Smith, Warwick Soden, Tania Sourdin

Research Collection Yong Pung How School Of Law

Nadja Alexander was contributor to the Report as council member of National Alternative Dispute Resolution Advisory Council.In this Report, the National Alternative Dispute Resolution Advisory Council (NADRAC) canvasses particular issues that support the integrity of alternative dispute resolution (ADR) processes, and that are identified in the Terms of Reference. These are: conduct obligations, rules about confidentiality and inadmissibility of communications within ADR processes, and immunity of ADR practitioners from being sued. The Report explains NADRAC’s understanding of the breadth of the concept of integrity as it applies to ADR processes, canvasses the views of interested parties about the integrity of …

Mediating Multiculturally: Culture And The Ethical Mediator, Carrie Menkel-Meadow, Harold I. Abramson

Georgetown Law Faculty Publications and Other Works

This commentary on mediating multiculturally in a chapter of Mediation Ethics (edited by Ellen Waldman) suggests there are times when mediators should not mediate, because of their own ethical commitments. Commenting on a hypothetical divorce scenario (of Ziba, a 17 year old from her 44 year old husband, with two children aged 3 and 2, where the parties claim to want Shari’a principles to apply), the author (Carrie Menkel-Meadow) suggests that she would not mediate a case which might violate formal laws (American marriage and divorce laws) or infringe on rights that one of the parties might not be fully …

It’S A Small World After All: Cultural Competence For Advocates In Dispute Resolution Processes, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Cultural competence has become an ethical mandate for all neutrals and advocates who use dispute resolution. Even though conflict is a universal phenomenon, our expression and choice of how to resolve conflict is culture specific. As our world becomes increasingly smaller, and flatter, and our law practices become globalized, ethically responsible attorneys are recalibrating their ethical compass and replacing their ethnocentric lens with a culturally relative lens. Yes, even if you are a New York attorney who disavows any international practice and remains steadfastly tethered to the N.Y. Rules of Professional Conduct, you still need to be culturally competent. …

Give Peace A Chance: A Guide To Mediating Child Welfare Cases, Jennifer Baum

Faculty Publications

(Excerpt)

Would you like to speed up your cases, achieve more satisfying results for your clients, and cut back on needlessly polarizing motion practice? Since its introduction in the 1980s, child welfare mediation has helped attorneys do just that by facilitating resolutions in child protective disputes more quickly, less contentiously, and with more acceptance from stakeholders than its courtroom alternative, adversarial litigation.

If you've handled dependency cases for any length of time, you are already familiar with the crushing caseloads, emotional volatility, and high-stakes decision-making that are the hallmarks of child welfare litigation. In a growing number of jurisdictions, attorneys …

The Globalized Practice Of Law: Part Two - It’S A Small World After All: Cultural Competence With Your International Brethren, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Globalization is a “force majeure” that is growing and shaping the practice of law. As increasing numbers of New York lawyers represent clients in transnational and cross-border matters, many New York attorneys are welcoming the enriching perspectives that their international brethren bring to deal making and dispute resolution. However, culturally competent lawyers are also cognizant of how the different and sometimes disparate ethical obligations and values held by their colleagues from civil law countries are influencing and, at times, complicating their dispute resolution efforts. In the previous column, I discussed how our perceptions, communications and preferential modes for resolving …

"We Can Work It Out": Using Cooperative Mediation--A Blend Of Collaborative Law And Traditional Mediation--To Resolve Divorce Disputes, Elena Langan

Scholarly Works

No abstract provided.

Defining Civil Disputes: Lessons From Two Jurisdictions, Camille Cameron, Elizabeth Thornburg

Articles, Book Chapters, & Popular Press

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 …

"Competence-Competence And Separability-American Style", Published As Chapter 8 In International Arbitration And International Commercial Law: Synergy, Convergence And Evolution, Jack M. Graves, Yelena Davydan

Scholarly Works

No abstract provided.

China's Turn Against Law, Carl F. Minzner

Faculty Scholarship

Chinese authorities are reconsidering legal reforms they enacted in the 1980s and 1990s. These reforms had emphasized law, litigation, and courts as institutions for resolving civil grievances between citizens and administrative grievances against the state. But social stability concerns have led top leaders to question these earlier reforms. Central Party leaders now fault legal reforms for insufficiently responding to (or even generating) surging numbers of petitions and protests.

Chinese authorities have now drastically altered course. Substantively, they are de-emphasizing the role of formal law and court adjudication. They are attempting to revive pre-1978 Maoist-style court mediation practices. Procedurally, Chinese authorities …

Mandatory Mediation And Its Variations, Nancy A. Welsh

Faculty Scholarship

The use of arbitration to resolve international investment disputes clearly represents an improvement over “gunboat diplomacy” and its implicit threat of violent confrontation. Nonetheless, investors, States and other stakeholders have begun to express dissatisfaction with some elements of arbitration in the international investment treaty context. First, arbitration proceedings can be quite lengthy, and their transaction costs seem to be increasing. Second, parties’ compliance is not guaranteed. Some States suggest they may refuse to abide by arbitral awards. Third, the process focuses parties on their legal rights when non-legal issues may be equally important and useful to achieve resolution. Fourth, arbitration …

Chapter 25. International Investment Arbitration: Winning, Losing And Why, Susan Franck, Karl P. Sauvant, Lisa Sachs, Ken Davies, Ruben Zandvliet, Gary Clyde Hufbauer, Laza Kekic, Nathan M. Jensen, Edmund J. Malesky, Reuven S. Avi-Yonah, Jose Guimon, Lorenzo Cotula, Christian Bellak, Markus Leibrecht, Terutomo Ozawa, Michael Mortimore, Carlos Razo, Premila Nazareth Satyanand, Gert Bruche, Anne Van Aaken, Jürgen Kurtz, Kathryn Gordon, Joachim Pohl, Veljko Fotak, William L. Megginson, Charles Kovacs, Mark Plotkin, David N. Fagan, Subrata Bhattacharjee, Armand Claude De Mestral, Jason Webb Yackee, Kevin P. Gallagher, Lauge N. Skovgaard Poulsen University College London, Hans Smit, Michael D. Nolan, Frederic G. Sourgens, Luke Eric Peterson, Gus Van Harten, Alexandre De Gramont

Contributions to Books

Succinct yet insightful reports are most welcome – especially in our era, distracted as it is by a rising tide of shallow commentary. For those who care about foreign direct investment (FDI), the premier reports are Columbia FDI Perspectives, published every few weeks by the Vale Columbia Center on Sustainable International Investment. Since the first issue (here republished as chapter 2) appeared in November 2008, the Perspectives have adhered to a format of about two pages, authored by a leading expert, on an FDI question of immediate interest. Consequently, there is no better way to keep abreast of changing trends …

Lawfare: A War Worth Fighting, Paul Williams

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Creditor Claims In Arbitration And In Court, Christopher R. Drahozal, Samantha Zyontz

Faculty Scholarship

This article is based on the Interim Report, Creditor Claims in Arbitration and in Court, issued in November 2009 by the Searle Civil Justice Institute's Consumer Arbitration Task Force. It seeks to compare the outcomes of debt collection arbitrations to the outcomes of debt collection cases in court to help in evaluating arbitration as a means of resolving consumer disputes. The arbitration cases examined are debt collection cases administered by the American Arbitration Association (AAA) as part of its consumer arbitration docket, supplemented by cases brought by a single debt buyer as part of a consumer debt collection program administered …

The Surprising Benefits To Developing Countries Of Linking International Trade And Intellectual Property, Rachel Brewster

Faculty Scholarship

The World Trade Organization's Trade Related Intellectual Property (TRIPS) Agreement is controversial, requiring WTO members to establish a host of domestic institutions to support intellectual property rights, including substantive laws creating rights and a host of enforcement procedures. Trade scholars and development advocates frequently criticize the agreement as economically harmful to developing countries. This Article does not argue that the TRIPS Agreement is beneficial for developing states, but highlights how the agreement has produced some surprising benefits over the last decade and a half. First, the TRIPS Agreement's requirement that developing states make the domestic enforcement of intellectual property rules …