Dispute Resolution and Arbitration Commons^™

Regional Human Rights Courts And Specialised Treaty Mechanisms For Investor-State Dispute Resolution, N. Jansen Calamita, Stefanie Schacherer, Facundo Perez-Aznar, Aikaterini Florou

Research Collection Yong Pung How School Of Law

The purpose of the present report is to provide an overview and analysis of the measures that States adopt internally to implement treaties establishing international court and tribunals and other international dispute settlement mechanisms (“IDSM treaties”). Although this report cannot be comprehensive in its survey of practices across all States, this analysis is intended to be useful in three ways. First, it can be useful with respect to the design and drafting of an instrument establishing a multilateral investment dispute settlement mechanism. Second, it can be useful for States when considering what types of implementing measures they may need to …

The New System Of Civil Appeals: What "Constitutional Or Administrative Law" Is; Whether To Appeal To The Appellate Division Or The Court Of Appeal; And Proposals For Further Reform, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

An application was made under s 95 of the Legal Profession Act to set aside a penalty imposed by the Council of the Law Society. The Court of Appeal held that an appeal lay to the Appellate Division of the High Court, and not the Court of Appeal, because this was not a “case relating to constitutional or administrative law”. The reasoning is problematic: it relied on an overly narrow conception of “public powers”, conflated judicial review with administrative law more broadly, erroneously considered the merits of the application as relevant to the “which court” question, and overlooked the similarities …

International And Regional Courts And Tribunals, N. Jansen Calamita, Stefanie Schacherer, Facundo Perez-Aznar, Aikaterini Florou

Research Collection Yong Pung How School Of Law

The purpose of the present report is to provide an overview and analysis of the measures that States adopt internally to implement treaties establishing international court and tribunals and other international dispute settlement mechanisms (“IDSM treaties”). Although this report cannot be comprehensive in its survey of practices across all States, this analysis is intended to be useful in three ways. First, it can be useful with respect to the design and drafting of an instrument establishing a multilateral investment dispute settlement mechanism. Second, it can be useful for States when considering what types of implementing measures they may need to …

The Artistry Of Mediation: A Look At Mediation’S Effectiveness For Resolving Cross-Cultural Disputes Through The Leonardo Da Vinci Conflict Between France’S Louvre Museum And Italy’S Uffizi Gallery, Sophia D. Casetta

Pepperdine Journal of Communication Research

Art is powerful, as it symbolizes the history and identity of the country that claims it. However, through timely transitions, such as trade and wars, the ownership of meaningful artworks blurs, with museums fighting to claim their heritage to put on honorable display for their people. Mediation can be a peaceful means to resolve art ownership disputes, as it accounts for respecting the individual cultures of the countries represented in the dispute. Using the key medication traits described within this essay, a prepared mediator involved in such a cross-cultural conflict should be able to help resolve the issue at hand. …

Limiting 28 U.S.C. § 1782: A Changed Landscape For Discovery In Private Commercial Arbitration Abroad, Jazmyne R. Barto

Brooklyn Journal of Corporate, Financial & Commercial Law

For decades 28 U.S.C. § 1782 has been used by foreign entities looking to compel discovery in the United States for use in commercial arbitration proceedings abroad. Despite the statute being in force since 1948, many federal courts were unsure of whether § 1782 could actually be used in international private commercial arbitration. The Supreme Court tried and failed to clarify the statute’s scope in 2004, leading to a circuit court split as to §1782’s applicability. Looking to end the controversy once and for all, during the Summer of 2022, the Supreme Court clearly stated that § 1782 might not …

Using Odr Platforms To Level The Playing Field: Improving Pro Se Litigation Through Odr Design, J.J. Prescott

Law & Economics Working Papers

In a few short years, court-connected ODR has shown itself capable of dramatically improving access to justice by reducing or eliminating barriers rooted in the simple fact that courts have traditionally offered dispute resolution services only during certain hours, only in particular physical places, and primarily through traditional face-to-face proceedings. Given the monopoly that courthouses have long had on resolving many legal issues, too many Americans have discovered their rights are simply too difficult or costly to exercise. As court-connected ODR systems spread, offering new types of dispute resolution services everywhere and often at any time, people will soon find …

Cjcr Publishes Volume 24, Issue 2 (Spring 2023), Halle Jaffe

Cardozo Journal of Conflict Resolution (CJCR) Blog

The Cardozo Journal of Conflict Resolution—the country’s preeminent legal journal of arbitration, negotiation, mediation, settlement, and restorative justice—today published the web edition of Volume 24, Issue 2 (Spring 2023). The print edition of the issue has also been released.

This post was originally published on the Cardozo Journal of Conflict Resolution website on May 10, 2023. The original post can be accessed via the Archived Link button above.

Why The Political Peace Process Failed Between The Afghanistan Central Government And The Taliban And How Using Negotiation Could Help Resolve The Conflict, Ross Herman

Cardozo Journal of Conflict Resolution (CJCR) Blog

The central government of Afghanistan and the Taliban reached a deadly stalemate, taking around one hundred lives a day from each side between 2018 and 2021. Their failure to reach a peace agreement may be due to the United States’ involvement and conflicting interests between the different Afghan groups.

This post was originally published on the Cardozo Journal of Conflict Resolution website on May 7, 2023. The original post can be accessed via the Archived Link button above.

California’S Proposed Ban On Mandatory Arbitration Agreements As A Condition Of Employment, Samuel Silverman

Cardozo Journal of Conflict Resolution (CJCR) Blog

California is casting uncertainty on the employer’s ability to implement mandatory arbitration agreements on employees. In October 2019, Governor Newson signed Assembly Bill No. 51, which would apply to employment contracts entered, modified, or extended on or after January 1, 2020. This bill created Labor Code Section 432.6, banning mandatory arbitration agreements as a condition of employment in California. This would work around the Federal Arbitration Act, which requires courts to enforce arbitration agreements, preempting the state laws that stood in its way. Critics argue that the process favors employers and discourages prospective employees from bringing legal claims. On the …

To Zoom Or Not To Zoom?: Mediators’ Perspectives On Virtual Mediation, Penina Gershbaum

Cardozo Journal of Conflict Resolution (CJCR) Blog

In mediation, conflicting parties meet with a mediator, a neutral party, to help them resolve their dispute. Mediations have traditionally been conducted in person, due to the importance of nonverbal communication in the mediation process. During Covid-19, however, states issued stay-at-home orders to prevent the spread of the virus. This mandate led to mediations conducted virtually through the use of videoconferencing platforms like Zoom. I interviewed ten mediators who mediate across different areas of law to hear their thoughts on the differences between mediating virtually and in person, difficulties with mediating virtually, and if they will return to in person …

A Muddy Mess: The Supreme Court’S Jurisprudence On Jurisdiction For Arbitration Matters, Kristen M. Blankley

University of Miami Law Review

The Supreme Court’s 2022 Badgerow v. Waters decision at- tempts to create a bright-line rule regarding access to federal courts to hear arbitration matters. On its face, the Badgerow majority opinion reads like a straightforward exercise in textualism. Badgerow interpreted the judicial test for jurisdiction under the Federal Arbitration Act (“FAA”) provision regarding vacatur differently than it interpreted the jurisdictional test for a motion to compel under a different part of the statute. However, Badgerow leaves courts, which were already struggling to decipher the Supreme Court’s 2009 decision of Vaden v. Discover Bank, with a significant number of outstanding questions. …

Recognition And Enforcement Of Foreign Court Judgments In Civil And Commercial Matters: An Indonesian Private International Law Perspective, Dinda Rizqiyatul Himmah, Justin Gabriel Wibisono

Indonesian Journal of International Law

One of the primary emphases of private international law is the recognition and enforcement of foreign judgments. It is believed as one of the private international law pillars which can attain the fulfillment of rights and obligations. For instance, in the realm of cross-border commercial transactions which enable contractual parties to settle their dispute before the foreign courts or other international dispute settlement bodies as they have agreed. Pertaining to the situation involving foreign courts, the recognition and enforcement of the delivered foreign judgments have been frequently challenging. As there are numerous discussions towards the recognition and enforcement of foreign …

The Civil War Conflict Between Anglophones/Francophones In The Northwest And Southwest Regions Of Cameroon, Myriam Jeter

Graduate Program in International Studies Theses & Dissertations

The Civil War conflict between Anglophones and Francophones, also known as the Ambazonia war, is a long-standing issue that continues to plague the people living in the Northwest and Southwest regions of Cameroon. This paper explores the colonial history of the nation, the cause of the ongoing conflict, the reasons for its escalation, and how it gave rise to the Ambazonian separatists who want to have a separate nation called the Ambazonia Republic.

This study contributes to conflict understanding in two ways. First, it sheds light on the cultural and economic impacts of internally generated crises in a country. Second, …

Mlb’S Salary Arbitration: Future Prospects For A Historic Adr Model, Eliott Dosetareh

Cardozo Journal of Conflict Resolution (CJCR) Blog

As the oldest major professional sports league in the country, the MLB’s record of salary arbitration has its roots in over 150 years of baseball history. The first Collective Bargaining Agreement or “CBA” was signed by the players union and owners in the early 1970s, creating a process for salary arbitration in which players not yet eligible for free agency would be compensated based upon their seasonal performances.

This post was originally published on the Cardozo Journal of Conflict Resolution website on April 30, 2023. The original post can be accessed via the Archived Link button above.

Mediation In The Metaverse: The Future Of Online Dispute Resolution?, Miranda Sapoznik

Cardozo Journal of Conflict Resolution (CJCR) Blog

The technological revolution was propelled following the inception of the COVID-19 pandemic. The wide-spread disruption of everyday functioning highlighted the need for virtual means of connection, consequentially altering communication norms across almost all arenas. Justice systems across the globe were no exception to this shift, as online dispute resolution ("ODR”) became a necessary mechanism to address legal conflicts. As ODR became the new normal in alternative dispute resolution (“ADR”), various digital platforms developed to accommodate the growing need.

This post was originally published on the Cardozo Journal of Conflict Resolution website on April 29, 2023. The original post can be …

Analyzing Brittney Griner’S Detention And Release, Zachary Knoop

Cardozo Journal of Conflict Resolution (CJCR) Blog

Editor’s Note: The following article has two parts. The first part was written prior to the prisoner swap that brought Britney Griner back to America. The second part was added by the author after the swap.

This post was originally published on the Cardozo Journal of Conflict Resolution website on April 29, 2023. The original post can be accessed via the Archived Link button above.

How Nike’S Trademark Infringement Lawsuit Against Kool Kiy & Omi May Benefit From China’S Wuhan Intermediate People’S Court’S Approach To Mediation, Daniel Hyungtae Kim

Cardozo Journal of Conflict Resolution (CJCR) Blog

In November 2022, Nike filed a trademark infringement lawsuit against Kool Kiy, Omi, and China-based manufacturer Xiamen Wandering Planet, garnering nationwide media attention. Particularly, Wandering Planet was accused of playing an integral role in the infringement by providing the sources to produce knockoff sneakers using Nike’s registered Air Jordan 1 and Dunk trade dress for Kiy and Omi. The manufacturer allegedly “knowingly participate[d] in a scheme to intentionally create confusion in the market place and capitalize on it.” Indeed, some confused consumers could not tell the difference between Kool Kiy’s products and Jordan’s. Nike’s staunch commitment to proceeding with litigation …

Confidentiality In Art-Related Adr: A Need For Change?, Olivia Huey

Cardozo Journal of Conflict Resolution (CJCR) Blog

Art and cultural heritage disputes can involve a variety of subject matter and “sensitive non-legal issues of a commercial, cultural, ethical, historical, moral, religious, or spiritual nature, while more often than not having a distinct international character. For such complex matters, there has long been conversations about the benefits of using ADR mechanisms instead of traditional litigation to address the issues that are highly relevant and important to the parties, but which courts are often not equipped or designed to address. Art-related disputes often involve not only a variety of private parties such as artists and art dealers but also …

Behind The Scenes Of Controversial International Commercial Arbitration: Case Study Of Heirs To The Sultanate Of Sulu V. Malaysia, Tze Chin Ong, James Ding Tse Wen

Indonesian Journal of International Law

Recently, an ad hoc arbitration final award of US$14.92 billion (approximately RM62.59 billion) in favour of the heirs of the 19^th-century sultanate, the late Sultan of Sulu, Sultan Jamalul Kiram II against Malaysia (the “Award”) that was handed down by a sole arbitrator had created much discussion in the international public and private law arena. Following the issuance of the n Award, Malaysia challenged the Award in the Paris Court of Appeal and successfully stayed the Award’s enforcement in France on July 12. During the same time, on July 11, two Luxembourg-registered subsidiaries of the Malaysian …

Competent Forum And Applicable Law In Personal Data Protection With A Foreign Element, Muhammad Faqih Adhiwisaksana, Tiurma Mangihut Pitta Allagan

Indonesian Journal of International Law

This research analyses on personal data protection with a foreign element as a private international law issue, focusing on competent forum and applicable law. The author uses a juridical-normative research method with literature studies to explain the relevant private international law principles, as well as Indonesian laws and regulations surrounding competent forum and applicable law regarding competent forum and applicable law on personal data protection with a foreign element. The study found that various private international law principles may be used to determine the applicable law in personal data protection with a foreign element dispute, such as nationality, place where …