Dispute Resolution and Arbitration Commons^™

Investment Treaty Arbitration Caught In The Public-Private Law Divide, Catharine Titi

Michigan Journal of International Law

The ongoing reform of investor-state dispute settlement (“ISDS”) underlines the pertinence of an old question that has received various and conflicting answers: Is investment arbitration a public or private method of dispute settlement? A key criticism leveled at investment treaty arbitration is that public interest disputes are decided by a system of private justice. This article critically reviews the dominant interpretations of investment treaty arbitration as public, private, or hybrid. It argues that the subjective nature of each interpretation means that none of them can be definitively adopted. Rather, the real arguments in favor of or against arbitration lie beyond …

Oil And A Slippery Path To Conflict: Conocophillips, Guyana, And The Hostile Elephant In The Room, Vivian M. Williams

Publications and Research

The increasing involvement of States and their surrogates in cross-border commercial activities has heralded an urgent need for codification of the well-established public international law rule of sovereign immunity. The problem is particularly thorny in international arbitration when corporate entities seek to enlist the courts of one State to seize the property of another state to enforce an arbitral award. The complex nature of sovereign immunity in a globalized economy and the challenge it poses for courts in the Caribbean, was highlighted in enforcement proceeding brought by oil giant, ConocoPhillips against Venezuela’s State corporations. This article therefore discusses (a) the …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

The Important Role Of Attorneys In Promoting Parties' Self-Determination In Mediation, John Lande

Faculty Publications

This short article analyzes the meaning of self-determination, and it demonstrates that attorneys generally have much greater ability than mediators to promote parties’ self-determination. I argue that “self-determination” is an admirable but unattainable ideal.

Instead, attorneys and mediators should focus on promoting parties’ best possible decision-making under the circumstances. To optimally promote the quality of parties’ decision-making during mediation sessions, they must be well-prepared before mediation sessions. At that stage, attorneys are in the best position to counsel clients, when they have more time to carefully consider their situation and they are not under pressure to respond to the …

Questionable Arbitrator Habits, Robert H. Smit

Faculty Scholarship

International arbitrators do some things in conducting arbitrations, that tend to go without saying, but that I struggle to accept without question. I speak not of major procedural missteps that run afoul of principles of due process or of procedural “best practices” codified in soft law instruments like the IBA Rules on the Taking of Evidence. Rather, I speak of some of the smaller, uncodified procedural behaviors — procedural habits, I call them — that international arbitrators adopt within the confines, and between the interstices, of those codified due process and soft law “best practice” parameters. I speak of widely …

Singapore Convention: Should Indonesia Ratify It?, Ahmad Rifa'i, Dimas Ramadhansyah

Indonesian Journal of International Law

As cross-border trading develops, there is an increasing need for an effective dispute resolution system to solve disputes on business transactions. Mediation is a well-established method of efficient alternative dispute resolution that was recently internationally recognized under a specific treaty. The United Nations General Assembly took a resolution to adopt the United Nations Convention on International Settlement Resulting from Mediation (“Singapore Convention”). The Indonesian government has tried to boost foreign investment, but such efforts have been delayed due to a legal enforcement issue, which requires a legal reform to provide certainty for investors by providing a seamless and internationally recognized …

Analisis Penyelesaian Sengketa Konstruksi Akibat Wanprestasi Dalam Perjanjian Jasa Konstruksi Ditinjau Dari Hukum Perdata, Mayangsari Nurul Imani, Prof. Dr. Rosa Agustina, S.H.,M.H

Lex Patrimonium

This research analyzes how dispute resolution efforts can be made in the event of a construction dispute due to default committed by a party in a construction service agreement. This research is prepared using a doctrinal research method. The author describes and analyses three problems in this research, namely the factors that cause construction disputes based on the provisions in the construction service agreement, efforts to resolve construction disputes due to default by the parties in the construction service agreement, and the court's opinion in resolving construction disputes in Case No. 692/Pdt.G/2019/PN.Jkt.Utr. The results show that construction disputes usually occur …

The Case For Mediation Representation Clinics And Externships, John Lande

Faculty Publications

This article recommends that law schools offer mediation representation clinics and externship courses to assist self-represented litigants in cases with legally-represented parties. These courses would prepare law students to practice in the modern world. Students would get experience working with real clients, conduct interviews, help clients assess their goals and interests, analyze claims, perform legal research, prepare documents, coordinate with mediators, and negotiate with counterpart attorneys.

The courses would address the needs of multiple stakeholders including self-represented litigants, law students, law schools, courts, attorneys, mediators, and society in general. Law schools would develop these courses in collaboration with many potential …

The Case For Strategic Case Evaluation And Management Courses, John Lande

Faculty Publications

This short article argues that law schools should substantially increase instruction in pretrial litigation, teaching students how to strategically evaluate and manage cases. Law school graduates generally are unprepared to work with clients, have difficulty communicating with clients, and don’t understand the “big picture” of client matters. They generally aren’t well trained in negotiation, which is essential in modern legal practice. The problem for law students and law schools is exacerbated by the transition to the NextGen bar exam and a movement in various states to use alternative mechanisms for licensing that would require demonstration of practical skills.

To address …

It's Time To Make Important Upgrades To Our Mediation Curriculum, John Lande

Faculty Publications

In the past five decades, mediation practice and teaching have grown in size and sophistication. Inevitably, some ideas that made sense early in this development need revision and updating to reflect evolving realities and improved understandings. This is a moment deserving reflection about what faculty should teach about mediation, especially in light of the NextGen bar exam and changes in various states’ licensing regimes.

This article suggests various upgrades of our mediation instruction. Change is hard but can be worth the effort. The article includes numerous specific suggestions and links to handy resources that faculty can incorporate in their courses …

Oxymorons R Us, John Lande

Faculty Publications

This short article riffs on comments at a program at the ABA Section of Dispute Resolution’s annual conference to illustrate how oxymoronic the terms “facilitative,” “evaluative,” and “empowerment” have become. It suggests ways that dispute resolution academics and practitioners can avoid speaking oxymoron.

Modern Mediation Practice In American Legal Cases, John Lande

Faculty Publications

This article provides excerpts of It's Time to Make Important Upgrades to Our Mediation Curriculum. It notes significant changes in mediation practice in the past five decades and highlights the nature of modern mediation practice in American legal cases. It suggests that law school faculty upgrade of our mediation instruction to reflect the realities of modern practice.

Ombuds Programs: How Alternative Dispute Resolution Improves The Lives Of Native Long-Term Care Residents, Brett Newberry

Journal of Dispute Resolution

Many Americans will spend at least some time in a long-term care facility. During their stay, every resident should receive competent care and maintain the highest possible quality of life. Long-term care ombuds programs exist to help achieve these goals. Long-term care ombuds (“LTCOs”) advocate for individuals living in long-term care facilities and for improvements to the long-term care system. Tribal long-term care ombuds are a subset of LTCOs who connect with and advocate for Native residents living in long-term care facilities. LTCOs help facilitate dispute resolution between residents, facilities, and family members, and work to improve resident care. The …

The Copyright Infringement Threat To X: How X (Formerly Twitter) Could Benefit From Licensing Agreements With Arbitration Clauses, Mary Claire Rose

Journal of Dispute Resolution

Copyright infringement on social media platforms is an ever increasing threat to society today. As social media platforms have grown, music publishers and movie studios have become more outspoken in criticizing the inadequacies in handing copyright infringement on these platforms. On June 14, 2023 a civil complaint was brought by Concord Music Group Inc. along with many other music publishers against X Corp. (“X”), formerly Twitter, for copyright infringement. The complaint alleges that X has infringed the copyright of more than 1,700 songs and the plaintiffs are seeking more than $250 million in damages. However, one can argue this was …

Exempting The Fmla From Forced Arbitration: The Need For Special Consideration Of Pregnant And Working Mothers To Achieve Gender Equality In The Workplace, Taylor Trefger

Journal of Dispute Resolution

Pregnant and working mothers face a multitude of challenges when making decisions that pertain to their health, children, and their livelihoods. Historically, women have encountered numerous barriers regarding their entrance and treatment in the United States labor force as a result of gender discrimination that promotes the idea that women, in their inherent ability to become mothers, renders them inadequate or inferior workers in comparison to men. Unfortunately, such archaic notions of gender roles persist still; today, the reality is that women are more likely to be employed part-time, occupy lower-paid roles, and are less likely to take on managerial …

Alternative Dispute Resolution In Agency Administrative Programs, Kristen Blankley, Kathleen Claussen, Judith Starr

Articles

This Article studies how federal agencies use and might better use different types of alternative dispute resolution (ADR)-including mediation, conciliation, facilitation, factfinding, minitrials, arbitration, and the use of ombuds-in the programs Congress has entrusted them to administer. The use of ADR by the executive branch of the federal government to resolve disputes with or among private actors has deep historical roots. ADR related to managerial agency matters such as employment or procurement is well-established across the government and performed under a uniform set of laws. Much less has been known, however, about the scope and reach of ADR in the …

Mandatory Mediation In England And Wales: A Paradigm Shift In Dispute Resolution, Mckayla Bogda

Journal of Dispute Resolution

In May of 2023, Tribunals in England and Wales had a backlog of nearly 144,000 cases. In a press release issued on July 25, 2023, the Ministry of Justice (MoJ) unveiled a significant policy change to combat this backlog. Under its new directive, individuals or entities wishing to pursue debt recovery claims of £10,000 or less are required to engage in mediation proceedings prior to their case’s adjudication in the small claims courts of England and Wales. This transformative shift signifies a departure from the traditional adversarial litigation model of both of these countries’ judicial systems.

Faculty List

Journal of Dispute Resolution

No abstract provided.

Masthead

Journal of Dispute Resolution

No abstract provided.

Description

Journal of Dispute Resolution

No abstract provided.