Dispute Resolution and Arbitration Commons^™

The Next New Normals – In General, John Lande

Faculty Blogs

The covid pandemic was a shock wave that reverberated for several years, and we still are feeling the effects. During the crisis period, we developed routines of sheltering in place, physical distancing, communicating electronically, and working from home, among other things. This post speculated about what that new normal might be like in many domains of life after the pandemic ends. It referred to this as the “normal new normal” (NNN) in contrast to the “crisis new normal” (CNN) for the duration of the crisis. It speculated that routines developed during the CNN period may have long-lasting effects during the …

Classifying Systems Of Constitutional Review: A Context-Specific Analysis, Samantha Lalisan

Indiana Journal of Constitutional Design

Modern constitutional drafters and advisors increasingly use judicial review classifications and the current model for classification does not accurately capture constitutional review in Latin America. This paper proposes context-specific classification that can accurately capture constitutional review in the Latin American region. Specifically, this paper argues that the context-specific analysis suggests that the more salient point of classification in Latin America is that of access mechanisms to constitutional courts. As such, the paper proceeds in four parts: Part I examines the traditional model of classification in Europe and focuses on the Spanish and German direct access mechanisms. Part II explores the …

Dispute Prevention And Early Dispute Resolution Framework, John Lande

Faculty Blogs

This post explains how lawyers can help clients use dispute prevention and early dispute resolution procedures, and it provides a general framework including dispute prevention.

Early Dispute Resolution Processes, John Lande

Faculty Blogs

This post describes planned early dispute resolution, lawyering with planned early negotiation, pre-suit mediation, and planned early two-stage and multi-stage mediation.

Lira @ Cpr, John Lande

Faculty Blogs

This post summarizes presentations, data collected, and discussion in a program of the International Institute for Conflict Prevention and Resolution (CPR). The authors of the LIRA book conducted a survey of the attendees, and the post presents results of the survey. It provides nuanced discussions about how practitioners calculate BATNA values and bottom lines.

The Nexus Of Access To Information, Good Governance, And Investment Negotiation, Mahmoud Elsaman

Washington International Law Journal

One advantage of alternative dispute resolution mechanisms is the confidentiality that they provide. Negotiations preceding and during dispute resolution proceedings are no exception to the rule of privacy. However, when governments are involved in negotiations, confidentiality may contradict the free access to information as a fundamental human right that plays a significant role in sustaining good governance by promoting transparency and government accountability. While there are escalating efforts to enhance the right to access information related to investment arbitration proceedings, not all investment disputes are settled through investment arbitration. A significant number of investment disputes are settled directly through investment …

Please Remain Standing: Using Fed. R. Civ. P. 15(D) Supplemental Pleading To Cure Defects In Standing, Carson Miller

University of Cincinnati Law Review

No abstract provided.

Law In The Time Of Covid-19, Katharina Pistor

Faculty Books

The COVID-19 crisis has ended and upended lives around the globe. In addition to killing over 160,000 people, more than 35,000 in the United States alone, its secondary effects have been as devastating. These secondary effects pose fundamental challenges to the rules that govern our social, political, and economic lives. These rules are the domain of lawyers. Law in the Time of COVID-19 is the product of a joint effort by members of the faculty of Columbia Law School and several law professors from other schools.

This volume offers guidance for thinking about some the most pressing legal issues the …

Addressing The Class Claim Conundrum With Online Dispute Resolution, Amy J. Schmitz

Faculty Publications

Consumers with similar claims in the United States (U.S.) often join forces to launch representative, or "class", actions. This allows them to obtain remedies with little cost and effort and serves a "private attorney general" function by bringing light to purchase problems that public enforcement offices may not have the resources to address. This is especially important for lower dollar claims that are too costly for each consumer to pursue individually.

Nonetheless, some have criticized class actions in the U.S. for forcing settlements and padding the pockets of lawyers, while leaving consumers with minimal pay outs. At the same time, …

Realigning Federal Statutes: Contradictions Between The Federal Arbitration Act And The National Labor Relations Act, Denise Han

Brigham Young University Prelaw Review

Christopher Steele and Brendan Leveron were employees at a private

maintenance company named Pinnacle. Both Steele and Leveron

reported that Pinnacle allegedly forced them to work overtime without

just compensation—an allegation that, if proven valid, would

violate the Fair Labor Standards Act and California state law. They

also claimed that Pinnacle was guilty of unfair business practices,

retaliation and whistleblowing violations, and a failure to account.

Soon after Steele and Leveron filed these allegations, they discovered

that their predicament was not unique across the firm. In 2012,

they decided to represent their fellow employees in a class-action suit

which so …

Comment On Us Trade And Investment Agreements Submitted To Ustr, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Comments to USTR Re: U.S.-Kenya Trade Agreement (April 28, 2020): CCSI, in response to the United States Trade Representative’s request for public comment to inform its approach to a U.S.-Kenya Trade Agreement, submitted Comments elaborating on our main points that (1) investor-state dispute settlement should not be included in any U.S.-Kenya agreement and (2) principles that should guide an investment chapter or investment provisions in any such agreement should (a) strategically support cross-border investment that produces positive development outcomes for the U.S. and Kenya, (b) facilitate and support good governance of investment projects, and (c) enhance cooperation to solve challenges …

Covid-19 And Conflicts: The Health Of Peace Processes During A Pandemic, Lisa K. Dicker, C. Danae Paterson

Faculty Publications

(Excerpt)

This Article reviews the status of selected contemporary peace processes in the early stages of the COVID-19 outbreak and explores some of the initial effects that the pandemic has had on those processes. The Article first provides an overview of the 20th and 21st century trend toward internationalized peace processes. Then, it introduces several contemporary mediation efforts that were ongoing at the onset of the pandemic and examines the early impacts of COVID-19 on those peace processes. In so doing, the Article identifies instances where actors have exploited the pandemic and peace processes where momentum has shrunk under COVID-19. …

Corruption Abroad: From Conflict To Co-Operation: A Comparison Of French And American Law And Practice, Fred Einbinder

Cardozo International & Comparative Law Review

The article examines the divergent approaches of France and the United States in combating corporate foreign corruption, highlighting their shared commitment to addressing the issue but differing legal frameworks and practices. While the U.S. employs participatory, lawyer-led systems with tools like plea bargaining and whistleblowing, France's inquisitorial, state-centric model has historically resisted such practices. The enactment of Sapin 2 in France marks a shift toward integrating American-style anti-corruption mechanisms, such as the Convention Judiciaire d'Intérêt Public (CJIP), while preserving core principles of French criminal law. The analysis underscores the challenges and opportunities of cross-border enforcement and the evolving cooperation between …

Public Opinions Of Unmanned Aerial Technologies In 2014 To 2019: A Technical And Descriptive Report, Lisa M. Pytlikzillig, Janell C. Walther, Carrick Detweiler, Sebastian Elbaum, Adam Houston

Lisa PytlikZillig Publications

The primary purpose of this report is to provide a descriptive and technical summary of the results from similar surveys administered in fall 2014 (n = 576), 2015 (n = 301), 2016 (ns = 1946 and 2089), and 2018 (n = 1050) and summer 2019 (n = 1300). In order to explore a variety of factors that may impact public perceptions of unmanned aerial technologies (UATs), we conducted survey experiments over time. These experiments randomly varied the terminology (drone, aerial robot, unmanned aerial vehicle (UAV), unmanned aerial system (UAS)) used to describe the technology, the purposes of the technology (for …

Case Note: Enforceability Of Agreements To Mediate In English Law, Nadja Alexander, Shou Yu Chong

Research Collection Yong Pung How School Of Law

Are agreements to mediate enforceable?The short (and incomplete) answer is: yes, they may be provided they are drafted appropriately. In this post we review a recent English judgment which sets outs guidelines for the enforceability of agreements to mediate under English law.In August 2019, the Technology and Construction Court of the Queen’s Bench Division in England made an important ruling in regard to the enforceability of agreements to mediate as a precondition to court or arbitration proceedings. Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC 2246 (TCC) provides guidance for how and when parties may rely on …

Five Recurring Problems In International Arbitration: The Relationship Between Courts And Arbitral Tribunals, Iris Ng, Melissa Ng, Andre Soh, Siyuan Chen

Research Collection Yong Pung How School Of Law

In recent years, five recurring problems regarding the relationship between courts and tribunals have gained prominence due to case law developments. These run the gamut from preliminary issues with the arbitration agreement to disputes at the enforcement stage. This article examines these problems in detail, with a view to shed new light on the question of what it means for a jurisdiction to be “pro-arbitration”. The authors argue that the oft-repeated binary categorisation of “pro-arbitration” and “anti-arbitration” jurisdictions is too broad-brush. Instead, there is no easy answer to what constitutes a truly “pro-arbitration” approach, and no one-size-fits-all approach to being …

Moving Us Courts Online, John Lande

Faculty Blogs

This post provides a summary compiled by Paul Embley of the National Center for State Courts about

Express Preclusion Of The Federal Arbitration Act For All Bankruptcy-Related Matters, John R. Hardison

St. John's Law Review

(Excerpt)

This Article sets forth a more solid justification for bankruptcy courts to refuse to order arbitration of any matter related to and affecting a bankruptcy case through express preclusion. First, this Article describes the historical development of the Supreme Court’s holdings on preclusion of the FAA in general and on the courts of appeals’ current formulation of a bankruptcy exception to the FAA. Next, this Article discusses the statutory, historical, and policy-based support for reading the bankruptcy jurisdictional provisions as creating an express exception to the FAA, or alternatively as supporting an implied exception to the FAA. As discussed, …

Johnny Veeder Qc 1948–2020, William W. Park

Faculty Scholarship

Thirty-six years ago, with a handful of arbitration aficionados, Johnny Veeder founded Arbitration International, later providing yeoman service as the journal’s second General Editor. He pushed the journal to aim at delivery of high-quality scholarship in the English language, on a broad spectrum of topics related to resolution of cross-border disputes, both public and private.

The Law Can Be Dangerous To Lawyers’ Mental Health, John Lande

Faculty Blogs

The legal system sometimes provides important benefits such as helping people solve difficult problems, making institutions function properly, and promoting justice. But the process needed to achieve these goals often is extremely stressful for litigants. Not only do parties suffer stress, but also do lawyers, law students, and law professors. So we all need to take care of ourselves and others.