Comparing WTO Panelists and ICSID Arbitrators: The Creation of International Legal Fields
Jose Augusto Fontoura Costa
Jose Augusto Fontoura Costa
Abstract:
Who are people who make the decisions in trade and investment dispute settlement systems? In order to describe and analyze investment arbitrators and trade panelists, the whole populations of people nominated to ICSID’s tribunals and committees as well as to WTO Panels from 1995 to 2009 were studied, considering their specialization in law, and their career backgrounds as public servants, academics or private professionals. Applying Pierre Bourdieu’s concept of legal fields, the data suggested that both systems produce legitimacy but in quite different ways and, interestingly, that the one more similar to domestic legal systems takes that form due to political forces, not by an incremental process powered by people with legal backgrounds.
Who are people who make the decisions in trade and investment dispute settlement systems? In order to describe and analyze investment arbitrators and trade panelists, the whole populations of people nominated to ICSID’s tribunals and committees as well as to WTO Panels from 1995 to 2009 were studied, considering their specialization in law, and their career backgrounds as public servants, academics or private professionals. Applying Pierre Bourdieu’s concept of legal fields, the data suggested that both systems produce legitimacy but in quite different ways and, interestingly, that the one more similar to domestic legal systems takes that form due to political forces, not by an incremental process powered by people with legal backgrounds.
Abstract:
The legitimacy of the World Bank's dispute resolution body - The International Centre for the Settlement of Investment Disputes (ICSID) - is a matter of heated debate. Some states have alleged that ICSID is biased, withdrawn from the ICSID Convention, and advocated creating alternative arbitration systems. Using pre-2007 archival data of the population of then- known arbitration awards, this Article quantitatively assesses whether ICSID arbitration awards were substantially different from arbitration awards rendered in other forums. The Article examines variation in the amounts claimed and outcomes reached to evaluate indicators of bias. The results indicated that there was no reliable statistical relationship between ICSID arbitrations and either amounts claimed or ultimate outcomes. The results generally did not show a statistical difference when controlling for (1) the presence of an Energy dispute, (2) the presence of a Latin American respondent, or (3) the respondent's Development Status. Nevertheless, although outcomes were not statistically different for Latin American and non-Latin American respondents, amounts claimed against Latin American states were higher - but only for non-ICSID arbitration. While the arguably higher initial arbitration risk may contribute to concerns related to perception of bias, the results provide initial evidence that those criticisms may have been misattributed to ICSID. Results suggested, on the whole, that ICSID arbitration awards were not statistically different from other arbitral processes, which is preliminary evidence that ICSID arbitration was not necessarily biased or that investment arbitration operated in reasonably equivalent ways across forums. Caution about this finding is appropriate given the size of the pre-2007 population and as one analysis suggested that for the subset comprised only of ICSID Convention awards as compared to all other awards (including ICSID Additional Facility awards), awards against Low Income respondents were statistically higher than awards against High Income respondents. Qualitative commonalities in that small subset of awards revealed the presence of certain types of law firms (or the lack thereof) or recent civil war in African states. In light of the initial quantitative findings for a pre-2007 population of arbitration awards, but recognizing the need for replication and methods to facilitate qualitative and normative assessments of ICSID, this Article concludes by suggesting that there may be value in implementing tailored reforms and structural safeguards to address arguable concerns of bias, improve the management of international economic conflict, and minimize a potential backlash to the international investment system.
The legitimacy of the World Bank's dispute resolution body - The International Centre for the Settlement of Investment Disputes (ICSID) - is a matter of heated debate. Some states have alleged that ICSID is biased, withdrawn from the ICSID Convention, and advocated creating alternative arbitration systems. Using pre-2007 archival data of the population of then- known arbitration awards, this Article quantitatively assesses whether ICSID arbitration awards were substantially different from arbitration awards rendered in other forums. The Article examines variation in the amounts claimed and outcomes reached to evaluate indicators of bias. The results indicated that there was no reliable statistical relationship between ICSID arbitrations and either amounts claimed or ultimate outcomes. The results generally did not show a statistical difference when controlling for (1) the presence of an Energy dispute, (2) the presence of a Latin American respondent, or (3) the respondent's Development Status. Nevertheless, although outcomes were not statistically different for Latin American and non-Latin American respondents, amounts claimed against Latin American states were higher - but only for non-ICSID arbitration. While the arguably higher initial arbitration risk may contribute to concerns related to perception of bias, the results provide initial evidence that those criticisms may have been misattributed to ICSID. Results suggested, on the whole, that ICSID arbitration awards were not statistically different from other arbitral processes, which is preliminary evidence that ICSID arbitration was not necessarily biased or that investment arbitration operated in reasonably equivalent ways across forums. Caution about this finding is appropriate given the size of the pre-2007 population and as one analysis suggested that for the subset comprised only of ICSID Convention awards as compared to all other awards (including ICSID Additional Facility awards), awards against Low Income respondents were statistically higher than awards against High Income respondents. Qualitative commonalities in that small subset of awards revealed the presence of certain types of law firms (or the lack thereof) or recent civil war in African states. In light of the initial quantitative findings for a pre-2007 population of arbitration awards, but recognizing the need for replication and methods to facilitate qualitative and normative assessments of ICSID, this Article concludes by suggesting that there may be value in implementing tailored reforms and structural safeguards to address arguable concerns of bias, improve the management of international economic conflict, and minimize a potential backlash to the international investment system.
Corporations and the Uses of Law: International Investment Arbitration as a 'Multilateral Legal Order'
Peter Muchlinski
Abstract:
This paper seeks to examine the claim, made by certain legal scholars, that international investment law, though based mainly on Bilateral Investment Treaties (BITs) is in fact a multilateral order that introduces principles of an emergent “global administrative law” into the regulation of state conduct in relation to foreign investors and their investments. Such scholars argue that this order develops through the decisions of investor-State arbitral tribunals which are creating a harmonised understanding of the meaning of BIT provisions and an institutional system of adjudication that furthers the development of global administrative principles. Through a critical examination of this approach the paper argues that this field is not a multilateral order but an unstructured process of privatised legal entrepreneurship which seeks to further a professional interest in developing an extensive, investor friendly, regime of BITs. Furthermore, that process fails as a means of providing effective or legitimate legal review of administrative action. The argument is made both on a theoretical level and by a review of a specific issue in international investment law, namely, the development of wider types of claims and the rise of so-called “treaty shopping” by means of corporate group structuring. In particular the multi-jurisdictional location of various affiliates in a multinational enterprise creates a network of potential claimants in investor state disputes, giving rise to the risk of multiple claims, while the possibility of setting up affiliates in various jurisdictions creates opportunities for “treaty shopping”. “Treaty shopping” involves the enterprise locating an affiliate in a jurisdiction that has signed an investment protection treaty with the host country, allowing various affiliates and/or the parent in a group enterprise to benefit from treaty protection even though they possess the nationality of a state that has no such agreement with the host. In addition “treaty shopping” can be practiced by claimants possessing the nationality of the host country itself by way of the incorporation of a “shell company” in a country that has an investment protection agreement with the host country. It is argued that interpretations of treaty provisions in this area lack real legitimacy and create unacceptable procedural burdens on the host country.
This paper seeks to examine the claim, made by certain legal scholars, that international investment law, though based mainly on Bilateral Investment Treaties (BITs) is in fact a multilateral order that introduces principles of an emergent “global administrative law” into the regulation of state conduct in relation to foreign investors and their investments. Such scholars argue that this order develops through the decisions of investor-State arbitral tribunals which are creating a harmonised understanding of the meaning of BIT provisions and an institutional system of adjudication that furthers the development of global administrative principles. Through a critical examination of this approach the paper argues that this field is not a multilateral order but an unstructured process of privatised legal entrepreneurship which seeks to further a professional interest in developing an extensive, investor friendly, regime of BITs. Furthermore, that process fails as a means of providing effective or legitimate legal review of administrative action. The argument is made both on a theoretical level and by a review of a specific issue in international investment law, namely, the development of wider types of claims and the rise of so-called “treaty shopping” by means of corporate group structuring. In particular the multi-jurisdictional location of various affiliates in a multinational enterprise creates a network of potential claimants in investor state disputes, giving rise to the risk of multiple claims, while the possibility of setting up affiliates in various jurisdictions creates opportunities for “treaty shopping”. “Treaty shopping” involves the enterprise locating an affiliate in a jurisdiction that has signed an investment protection treaty with the host country, allowing various affiliates and/or the parent in a group enterprise to benefit from treaty protection even though they possess the nationality of a state that has no such agreement with the host. In addition “treaty shopping” can be practiced by claimants possessing the nationality of the host country itself by way of the incorporation of a “shell company” in a country that has an investment protection agreement with the host country. It is argued that interpretations of treaty provisions in this area lack real legitimacy and create unacceptable procedural burdens on the host country.
Legitimacy and Reflexivity in International Investment Arbitration: A New Self-Restraint?
David Schneiderman
Abstract:
There are at least two views within investment arbitration about how to respond to legitimation problems associated with inconsistent rulings, latitudinal interpretations, and arbitral bias and conflicts of interest. Some prefer to keep the regime on course and not respond to these outside perturbations. Others prefer to take into account external influences, such as human rights and environmental commitments, in the course of investment treaty interpretation. Both understand that, whatever the response, these questions will be determined by lawyers, scholars, and arbitrators operating within the system of international investment law and not by actors operating outside of it. Both views, in other words, are congenial to systems-theoretic accounts. As articulated by Teubner, there is a proliferation of functional legal sub-systems, developing autonomously of states, each of which, in the course of maximizing internal rationality, potentially is on a collision course with other operative sub-systems. These can only be forestalled if sub-systems act reflexively by devising strategies of self-limitation that selectively internalize objections emanating from external spheres. As this maps on to self-understandings of actors operating within investment arbitration, this paper takes up systems theory as a heuristic for assessing the regime’s responsiveness to outside influences. In order to take stock of the degree of reflexivity, the paper examines the direction investment law is taking in a few key areas: first, in the shift in emphasis away from expropriations (the ‘takings rule’) to the fair and equitable treatment standard, which is performing similar functions; second, in the attempt to merge global standards by embracing World Trade Organization Appellate Body decision making; and third, the hesitant embrace of proportionality doctrine as a means of weighing public interests into the equation. These moments of reflexivity turn out to be modest in reach and so unlikely to calm objections emanating from states and social movements. What likely will be necessary is intervention into and steering by states of the regime, an intervention that is anathematic to Teubner’s system-theoretic account.
There are at least two views within investment arbitration about how to respond to legitimation problems associated with inconsistent rulings, latitudinal interpretations, and arbitral bias and conflicts of interest. Some prefer to keep the regime on course and not respond to these outside perturbations. Others prefer to take into account external influences, such as human rights and environmental commitments, in the course of investment treaty interpretation. Both understand that, whatever the response, these questions will be determined by lawyers, scholars, and arbitrators operating within the system of international investment law and not by actors operating outside of it. Both views, in other words, are congenial to systems-theoretic accounts. As articulated by Teubner, there is a proliferation of functional legal sub-systems, developing autonomously of states, each of which, in the course of maximizing internal rationality, potentially is on a collision course with other operative sub-systems. These can only be forestalled if sub-systems act reflexively by devising strategies of self-limitation that selectively internalize objections emanating from external spheres. As this maps on to self-understandings of actors operating within investment arbitration, this paper takes up systems theory as a heuristic for assessing the regime’s responsiveness to outside influences. In order to take stock of the degree of reflexivity, the paper examines the direction investment law is taking in a few key areas: first, in the shift in emphasis away from expropriations (the ‘takings rule’) to the fair and equitable treatment standard, which is performing similar functions; second, in the attempt to merge global standards by embracing World Trade Organization Appellate Body decision making; and third, the hesitant embrace of proportionality doctrine as a means of weighing public interests into the equation. These moments of reflexivity turn out to be modest in reach and so unlikely to calm objections emanating from states and social movements. What likely will be necessary is intervention into and steering by states of the regime, an intervention that is anathematic to Teubner’s system-theoretic account.
Contributions and Limitations of Empirical Research on Independence and Impartiality in International Investment Arbitration
Gus Van Harten
Abstract:
The use of investment treaty arbitration to decide public law raises concerns about judicial independence and impartiality. These concerns arise from the absence of institutional safeguards of independence that are otherwise present in public law adjudication at the domestic or international level. In this article, opportunities to use empirical methods to study possible bias in investment arbitration are surveyed. The discussion includes a brief consideration of qualitative methods and a critique of two quantitative studies on outcomes in investment arbitration. The discussion then turns to the methodology of an ongoing project involving legal content analysis of decisions by investment treaty tribunals. The main conclusion reached in the paper is that empirical research can make important contributions to scholarly understanding of investment arbitration. On the other hand, empirical research has important limitations in its ability to demonstrate the presence or absence of actual bias, even at a systemic level, thus reinforcing the need for institutional safeguards.
Application of the Unidroit Principles in China: Successes, Shortcomings and Implications
Manjiao Chi
The use of investment treaty arbitration to decide public law raises concerns about judicial independence and impartiality. These concerns arise from the absence of institutional safeguards of independence that are otherwise present in public law adjudication at the domestic or international level. In this article, opportunities to use empirical methods to study possible bias in investment arbitration are surveyed. The discussion includes a brief consideration of qualitative methods and a critique of two quantitative studies on outcomes in investment arbitration. The discussion then turns to the methodology of an ongoing project involving legal content analysis of decisions by investment treaty tribunals. The main conclusion reached in the paper is that empirical research can make important contributions to scholarly understanding of investment arbitration. On the other hand, empirical research has important limitations in its ability to demonstrate the presence or absence of actual bias, even at a systemic level, thus reinforcing the need for institutional safeguards.
Application of the Unidroit Principles in China: Successes, Shortcomings and Implications
Manjiao Chi
Abstract:
The purpose of this Article is to explore application of the Principles in China, based on the comparative study of relevant Chinese law provisions and case study of the reported judicial and arbitral practices. The Article firstly summarizes several situations where the Principles may be applied as suggested by their preamble (Part II). It then discusses the impacts of the Principles on Chinese contract law and application of the Principles in China by legislative practices (Part III), party autonomy (Part IV), judicial practices (Part V) and arbitral practices (Part VI) respectively. In the conclusion part (Part VII), the Article observes that, despite the achievements Chinese contract law has made, there still exist various restrictions on application of the Principles in China, which calls for timely improvement of relevant Chinese laws and practices, particularly a more autonomous arbitration regime.
The purpose of this Article is to explore application of the Principles in China, based on the comparative study of relevant Chinese law provisions and case study of the reported judicial and arbitral practices. The Article firstly summarizes several situations where the Principles may be applied as suggested by their preamble (Part II). It then discusses the impacts of the Principles on Chinese contract law and application of the Principles in China by legislative practices (Part III), party autonomy (Part IV), judicial practices (Part V) and arbitral practices (Part VI) respectively. In the conclusion part (Part VII), the Article observes that, despite the achievements Chinese contract law has made, there still exist various restrictions on application of the Principles in China, which calls for timely improvement of relevant Chinese laws and practices, particularly a more autonomous arbitration regime.
Abstract:
Do you ask for contract or purchase terms prior to completing your everyday purchases? Do you first read the pizza box before paying the pizza delivery guy or gal? Typical consumers do not ask for or read their contracts prepurchase, and companies have become accustomed to burying purchase terms in product packaging or Internet links. These postpurchase, rolling, or “pizza-box” contracts have therefore become the norm in the consumer marketplace, and courts generally enforce them as legitimate contracts. This Article discusses varying theoretical perspectives on enforcement of these pizza-box contracts, and explores the available empirical data bearing on the legitimacy of post-purchase consent. It also adds some relevant results from the recent e-survey I conducted of consumers’ contracting behavior. The Article concludes by inviting further study and debate regarding enforcement of postpurchase terms. Further study and consideration of the meaning of contractual consent is especially important in light of the increasing prevalence of postpurchase terms with respect to online/e-contracts.
Do you ask for contract or purchase terms prior to completing your everyday purchases? Do you first read the pizza box before paying the pizza delivery guy or gal? Typical consumers do not ask for or read their contracts prepurchase, and companies have become accustomed to burying purchase terms in product packaging or Internet links. These postpurchase, rolling, or “pizza-box” contracts have therefore become the norm in the consumer marketplace, and courts generally enforce them as legitimate contracts. This Article discusses varying theoretical perspectives on enforcement of these pizza-box contracts, and explores the available empirical data bearing on the legitimacy of post-purchase consent. It also adds some relevant results from the recent e-survey I conducted of consumers’ contracting behavior. The Article concludes by inviting further study and debate regarding enforcement of postpurchase terms. Further study and consideration of the meaning of contractual consent is especially important in light of the increasing prevalence of postpurchase terms with respect to online/e-contracts.
Abstract:
The paper analyses the sources of the res judicata effect of international arbitral awards. It discusses the problems inherent in the application of the rules of domestic law governing the res judicata effects of national judgments and the approach of international arbitrators and of national courts. It then proposes the development of ad hoc transnational principles to govern the subject matter, and focuses in particular on the Recommendations on Res Judicata in International Commercial Arbitration of the International Law Association.
The paper analyses the sources of the res judicata effect of international arbitral awards. It discusses the problems inherent in the application of the rules of domestic law governing the res judicata effects of national judgments and the approach of international arbitrators and of national courts. It then proposes the development of ad hoc transnational principles to govern the subject matter, and focuses in particular on the Recommendations on Res Judicata in International Commercial Arbitration of the International Law Association.
Mediation in Employment and Creeping Legalism: Implications for Dispute Systems Design
Lisa Blomgren Bingham , Susan Summer Raines , Timothy Hedeen and Lisa-Marie Napoli
Abstract:
This article will explore the question of creeping legalism in mediation of statutory disputes arising out of employment. First, it will briefly review the issue of creeping legalism in arbitration. Second, it will introduce dispute systems design (DSD). Third, it will review the analogous debate on legalism in mediation in three design contexts: evaluative mediation of employment disputes in the court-connected setting, grievance mediation embedded in the collective bargaining agreement, and transformative mediation of employment disputes in the United States Postal Service’s (USPS’s) REDRESS program. Most employees do not face a choice among mediation models; instead, they choose among adjudicative processes or mediation. Thus, the article will conclude by reporting the results of an interview study comparing USPS employees’ experiences in the EEO complaint process, grievance arbitration, and employment mediation. These results show that an individual employee complainant may benefit from a non-adversarial, non-legalistic, and voluntary mediation model that seeks to foster communication and mutual understanding.
This article will explore the question of creeping legalism in mediation of statutory disputes arising out of employment. First, it will briefly review the issue of creeping legalism in arbitration. Second, it will introduce dispute systems design (DSD). Third, it will review the analogous debate on legalism in mediation in three design contexts: evaluative mediation of employment disputes in the court-connected setting, grievance mediation embedded in the collective bargaining agreement, and transformative mediation of employment disputes in the United States Postal Service’s (USPS’s) REDRESS program. Most employees do not face a choice among mediation models; instead, they choose among adjudicative processes or mediation. Thus, the article will conclude by reporting the results of an interview study comparing USPS employees’ experiences in the EEO complaint process, grievance arbitration, and employment mediation. These results show that an individual employee complainant may benefit from a non-adversarial, non-legalistic, and voluntary mediation model that seeks to foster communication and mutual understanding.
The Changing Face of Liberalism in Workplace Democracy: The Shift from Collective to Individual Rights
Emily Barker
Emily Barker
Abstract:
The 1960s and 1970s saw a drastic change in the liberal conception of workplace equality. Post-war liberals defined equality in terms of collective rights, with labor law and unions epitomizing this conception. The civil rights generation, on the other hand, thought equality to be based in the rights of the individual. As new laws upholding individual civil rights proliferated, employers found themselves increasingly bound by incompatible legal duties under the two parallel systems governing labor rights.
Through their union agreements, employers were bound to treat all employees identically; administering vacations, bonuses, and promotions according to seniority as outlined in the collective bargaining agreement. However, the civil rights statutes demanded deviation from these agreements at times by requiring employers to take into consideration individual employee circumstances. Thus with the recognition of individual rights in a time when most workplace decisions were governed by contracts upholding collective rights, a question arose: where the rights of the collective and the rights of the individual are opposed, to which do we give primacy?
This question quickly became the subject of dispute in both labor dispute mechanisms: the courts and the labor arbitration regime. A survey of each system's approach to the problem reveals very different procedural methods of resolution leading to equally different substantive outcomes. In close cases, labor arbitrators tended to side with employers who followed the collective bargaining agreement, often in contravention of the new civil rights statutes. I propose that this pattern arose not from differing views as to what the substantive law should be, or even from racial animus, but rather, from the inherent structural limitations of the labor arbitration process as it stood in the early 1970s.
The role of labor arbitrators had traditionally been limited to interpreting the collective bargaining agreement within the four corners of the document, and I propose that the arbitration mechanisms were simply not equipped to take cognizance of laws outside this limited purview. I also suggest that employees' conflicting access to individual rights, depending on whether they went through the union grievance process or straight to court, may have led to a changed view of labor law's role for the average worker. Labor law no longer represented the avant guarde of the liberal workplace democracy. Rather its structures now acted to inhibit the movement that the courts and society in general were making towards individual rights. This structural deficit may in turn have led to a social movement away from unionization.
This paper focuses on a narrow time frame in the early 1970s, after the civil rights movement was underway, but before labor law and its internal dispute resolution mechanisms had the chance to harmonize themselves with the new conception of equality. It is in this period that the clash of collective rights and individual rights become most apparent within the dispute resolution mechanisms.
The 1960s and 1970s saw a drastic change in the liberal conception of workplace equality. Post-war liberals defined equality in terms of collective rights, with labor law and unions epitomizing this conception. The civil rights generation, on the other hand, thought equality to be based in the rights of the individual. As new laws upholding individual civil rights proliferated, employers found themselves increasingly bound by incompatible legal duties under the two parallel systems governing labor rights.
Through their union agreements, employers were bound to treat all employees identically; administering vacations, bonuses, and promotions according to seniority as outlined in the collective bargaining agreement. However, the civil rights statutes demanded deviation from these agreements at times by requiring employers to take into consideration individual employee circumstances. Thus with the recognition of individual rights in a time when most workplace decisions were governed by contracts upholding collective rights, a question arose: where the rights of the collective and the rights of the individual are opposed, to which do we give primacy?
This question quickly became the subject of dispute in both labor dispute mechanisms: the courts and the labor arbitration regime. A survey of each system's approach to the problem reveals very different procedural methods of resolution leading to equally different substantive outcomes. In close cases, labor arbitrators tended to side with employers who followed the collective bargaining agreement, often in contravention of the new civil rights statutes. I propose that this pattern arose not from differing views as to what the substantive law should be, or even from racial animus, but rather, from the inherent structural limitations of the labor arbitration process as it stood in the early 1970s.
The role of labor arbitrators had traditionally been limited to interpreting the collective bargaining agreement within the four corners of the document, and I propose that the arbitration mechanisms were simply not equipped to take cognizance of laws outside this limited purview. I also suggest that employees' conflicting access to individual rights, depending on whether they went through the union grievance process or straight to court, may have led to a changed view of labor law's role for the average worker. Labor law no longer represented the avant guarde of the liberal workplace democracy. Rather its structures now acted to inhibit the movement that the courts and society in general were making towards individual rights. This structural deficit may in turn have led to a social movement away from unionization.
This paper focuses on a narrow time frame in the early 1970s, after the civil rights movement was underway, but before labor law and its internal dispute resolution mechanisms had the chance to harmonize themselves with the new conception of equality. It is in this period that the clash of collective rights and individual rights become most apparent within the dispute resolution mechanisms.
‘Brother, Can You Spare a Dime?’ Technology Can Reduce Dispute Resolution Costs When Times are Tough and Improve Outcomes
David Allen Larson
Abstract:
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 some of the cost savings that can be achieved through greater reliance on technology. It can be somewhat more difficult, however, to identify the circumstances in which technology can create unanticipated costs. Fortunately, many of those costs can be avoided.
This article identifies cost efficiencies that technology can bring to dispute resolution processes and also suggest how potential costs can be minimized or avoided. The article begins by examining the Technology Revolution. The emergence of technology mediated dispute resolution (TMDR) as an efficient and cost-effective means of resolving disputes illustrates the significant impact the Technology Revolution has had in the area of ADR. This article suggests why TMDR has not been embraced more enthusiastically. It then explores how we can use technology to make dispute resolution more effective and efficient and explains why, in light of a rapidly maturing technology savvy generation, we might have little choice but to embrace TMDR.
The article next discusses Cybersettle and Smartsettle, two of the established TMDR programs available today. The following section provides additional reasons why the use of TMDR will increase, including the assertion that foreign nations’ decisions to expand TMDR will compel the United States to rely more heavily on TMDR. The article then examines the challenges raised by TMDR. These challenges include power imbalances; the possibility that TMDR software and platforms may exercise greater influence over the dispute resolution process than expected; and questions as to how we can involve artificial intelligence devices, robots, and avatars in our dispute resolution processes. Ideas for integrating artificial intelligence devices into TMDR processes are based upon the manner in which these devices already are being used in the health care industry. The article concludes by examining the dangers and financial costs of relying on avatars and robots, identifies sectors well positioned to use TMDR, and briefly raises the issue of whether we need to regulate TMDR.
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 some of the cost savings that can be achieved through greater reliance on technology. It can be somewhat more difficult, however, to identify the circumstances in which technology can create unanticipated costs. Fortunately, many of those costs can be avoided.
This article identifies cost efficiencies that technology can bring to dispute resolution processes and also suggest how potential costs can be minimized or avoided. The article begins by examining the Technology Revolution. The emergence of technology mediated dispute resolution (TMDR) as an efficient and cost-effective means of resolving disputes illustrates the significant impact the Technology Revolution has had in the area of ADR. This article suggests why TMDR has not been embraced more enthusiastically. It then explores how we can use technology to make dispute resolution more effective and efficient and explains why, in light of a rapidly maturing technology savvy generation, we might have little choice but to embrace TMDR.
The article next discusses Cybersettle and Smartsettle, two of the established TMDR programs available today. The following section provides additional reasons why the use of TMDR will increase, including the assertion that foreign nations’ decisions to expand TMDR will compel the United States to rely more heavily on TMDR. The article then examines the challenges raised by TMDR. These challenges include power imbalances; the possibility that TMDR software and platforms may exercise greater influence over the dispute resolution process than expected; and questions as to how we can involve artificial intelligence devices, robots, and avatars in our dispute resolution processes. Ideas for integrating artificial intelligence devices into TMDR processes are based upon the manner in which these devices already are being used in the health care industry. The article concludes by examining the dangers and financial costs of relying on avatars and robots, identifies sectors well positioned to use TMDR, and briefly raises the issue of whether we need to regulate TMDR.
Abstract:
The litigation process in bankruptcy courts differs from the litigation process under the Federal Rules of Civil Procedure. And the bankruptcy litigation process differs from the Federal Rules in many of the same ways that the arbitration process tends to differ from the Federal Rules. This Article explores these similarities between the procedures of bankruptcy litigation and arbitration and contrasts them with the more elaborate procedures of ordinary civil litigation under the Federal Rules.
The litigation process in bankruptcy courts differs from the litigation process under the Federal Rules of Civil Procedure. And the bankruptcy litigation process differs from the Federal Rules in many of the same ways that the arbitration process tends to differ from the Federal Rules. This Article explores these similarities between the procedures of bankruptcy litigation and arbitration and contrasts them with the more elaborate procedures of ordinary civil litigation under the Federal Rules.
Is This a Great Leap Forward? – A Comparative Review of the Investor-State Arbitration Clause in the ASEAN-China Investment Treaty: From BIT Jurisprudential and Practical Perspectives
Wei Shen
Abstract:
A major feature of modern bilateral investment treaties (BITs) is to allow investors to access international tribunals such as ICSID for the resolution of disputes between the investor and the host state. Both ASEAN member states and China are active BIT players and entered into more than 240 and 120 BITs respectively. With tremendous political, economic and legal significance, ASEAN and China concluded an investment treaty in 2009. The focus of this article is to scrutinize key aspects of the investor-state arbitration clause in this new regional treaty from BIT jurisprudential and practical perspectives, in particular, the Chinese BIT perspectives. Compared to old-generation Chinese BITs, this treaty is leaning towards a liberal stance further facilitating investors to resort to international arbitration for investment disputes, which in turn promotes liberalism and unity in BIT activities in the region.
A major feature of modern bilateral investment treaties (BITs) is to allow investors to access international tribunals such as ICSID for the resolution of disputes between the investor and the host state. Both ASEAN member states and China are active BIT players and entered into more than 240 and 120 BITs respectively. With tremendous political, economic and legal significance, ASEAN and China concluded an investment treaty in 2009. The focus of this article is to scrutinize key aspects of the investor-state arbitration clause in this new regional treaty from BIT jurisprudential and practical perspectives, in particular, the Chinese BIT perspectives. Compared to old-generation Chinese BITs, this treaty is leaning towards a liberal stance further facilitating investors to resort to international arbitration for investment disputes, which in turn promotes liberalism and unity in BIT activities in the region.
Enhancing Judicial Reputation Through Legal Transplant - Estoppel Travels to France
Gilles Cuniberti
Abstract:
Since 2005, the French supreme court has ruled that the “rule of estoppel” is part of the French law of arbitration, and prevents parties from contradicting themselves when challenging arbitral awards before French courts. This Article explores why the French supreme court found it useful to openly borrow a common law doctrine while the application of old French rules had long enabled the court to sanction the very same strategic behavior. I argue that, although economic attractivity might have played a role, this legal transplant ought to be explained first and foremost by the willingness of the court to enhance its reputation, both collective and of its individual members.
Since 2005, the French supreme court has ruled that the “rule of estoppel” is part of the French law of arbitration, and prevents parties from contradicting themselves when challenging arbitral awards before French courts. This Article explores why the French supreme court found it useful to openly borrow a common law doctrine while the application of old French rules had long enabled the court to sanction the very same strategic behavior. I argue that, although economic attractivity might have played a role, this legal transplant ought to be explained first and foremost by the willingness of the court to enhance its reputation, both collective and of its individual members.
Law Applicable to the Merits of the Dispute Submitted to Arbitration in the Absence of the Choice of Law by the Parties (Remarks on Polish Law)
Mateusz J. Pilich
Mateusz J. Pilich
Abstract:
The main purpose of this paper is to analyze dominant trends in conflict of laws under Article 1194(1) of Polish Code of Civil Procedure, which concerns the law applicable to the merits of international commercial arbitration. Polish arbitration law is generally opened to various approaches in this respect, so that Polish law should be interpreted as recognizing both “indirect” and “direct” method of designating the law applicable by arbitrators.
The main purpose of this paper is to analyze dominant trends in conflict of laws under Article 1194(1) of Polish Code of Civil Procedure, which concerns the law applicable to the merits of international commercial arbitration. Polish arbitration law is generally opened to various approaches in this respect, so that Polish law should be interpreted as recognizing both “indirect” and “direct” method of designating the law applicable by arbitrators.
Abstract:
This Article provides a short summary of the distinctions between privacy and confidentiality in domestic arbitration pursuant to non-public parties’ private agreements, and seeks to spark discussion of transparency reforms that respond to effects of these distinctions in that context. It explains that such arbitration is generally private in that it is a closed process, but it is not confidential to the extent information revealed during the process may become public. This has caused confusion regarding the arbitration process that may lead parties to accept arbitration agreements without contracting for confidentiality, which may disproportionately harm individuals who assume that their personal information revealed in arbitration will remain secret. At the same time, companies may use confidentiality provisions, along with arbitration’s privacy, to shield information regarding their legal violations that may affect public interests.
This Article provides a short summary of the distinctions between privacy and confidentiality in domestic arbitration pursuant to non-public parties’ private agreements, and seeks to spark discussion of transparency reforms that respond to effects of these distinctions in that context. It explains that such arbitration is generally private in that it is a closed process, but it is not confidential to the extent information revealed during the process may become public. This has caused confusion regarding the arbitration process that may lead parties to accept arbitration agreements without contracting for confidentiality, which may disproportionately harm individuals who assume that their personal information revealed in arbitration will remain secret. At the same time, companies may use confidentiality provisions, along with arbitration’s privacy, to shield information regarding their legal violations that may affect public interests.
Beyond the Scope of ‘Investor’ and ‘Investment’: Who can Make an Arbitration Claim under a Chinese BIT? – Some Implications from a Recent ICSID Case
Wei Shen
Abstract:
The article discusses the definitions and scope of two BIT notions: “investor” and “investment”, affecting the jurisdiction of a tribunal that adjudicates an investor-state investment dispute under the BIT by reference to the Decision on Jurisdiction and Competence for the case of Tza Yap Shum v. The Republic of Peru (the “Award”), the first ever case heard on a Chinese BIT and rendered by the arbitral tribunal convened under the auspices of ICSID on June 19, 2009.
The article discusses the definitions and scope of two BIT notions: “investor” and “investment”, affecting the jurisdiction of a tribunal that adjudicates an investor-state investment dispute under the BIT by reference to the Decision on Jurisdiction and Competence for the case of Tza Yap Shum v. The Republic of Peru (the “Award”), the first ever case heard on a Chinese BIT and rendered by the arbitral tribunal convened under the auspices of ICSID on June 19, 2009.
Abstract:
The 2009-10 Term at the Supreme Court was a relatively quiet one for labor and employment law. While the Justices were in the news for decisions on corporate political donations and the Second Amendment, the Court’s work-related docket grabbed no headlines. In fact, though, the Court considered 7 work law cases this Term, in areas ranging from standards for arbitration agreements to employee privacy rights in new technology to time limitations for filing Title VII disparate impact claims. This article discusses the Court’s labor and employment cases for the Term. While they may not have made much news, several of the decisions divided the Court sharply. And, as has been true throughout Chief Justice John Roberts’ tenure, the decisions overall reflect a powerful deference to business interests.
The 2009-10 Term at the Supreme Court was a relatively quiet one for labor and employment law. While the Justices were in the news for decisions on corporate political donations and the Second Amendment, the Court’s work-related docket grabbed no headlines. In fact, though, the Court considered 7 work law cases this Term, in areas ranging from standards for arbitration agreements to employee privacy rights in new technology to time limitations for filing Title VII disparate impact claims. This article discusses the Court’s labor and employment cases for the Term. While they may not have made much news, several of the decisions divided the Court sharply. And, as has been true throughout Chief Justice John Roberts’ tenure, the decisions overall reflect a powerful deference to business interests.
On the Discretion to Enforce Awards under the New York Convention - A Casenote on Dallah v. Government of Pakistan
Gilles Cuniberti
Gilles Cuniberti
(Paper in French)
Abstract:
This note discusses the conflicting decisions rendered by the UK Supreme Court and the Paris Court of Appeal in Dallah v. Pakistan. In this case, English courts denied recognition to an ICC arbitral award made in Paris for lack of jurisdiction of the arbitral tribunal over the Government of Pakistan, while French courts rejected a challenge against the award on the same ground. The note explores why courts in each jurisdiction reached opposite results and concludes that English courts ought to have given weight (which does not mean give res judicata) to the jurisdictional finding of the arbitral tribunal when exercising their discretion, under the New York Convention, to enforce awards notwithstanding the finding that one of the grounds for denying recognition existed.
The Shifting Tide of ESI Discovery Cost Allocation
Edward Pekarek
This note discusses the conflicting decisions rendered by the UK Supreme Court and the Paris Court of Appeal in Dallah v. Pakistan. In this case, English courts denied recognition to an ICC arbitral award made in Paris for lack of jurisdiction of the arbitral tribunal over the Government of Pakistan, while French courts rejected a challenge against the award on the same ground. The note explores why courts in each jurisdiction reached opposite results and concludes that English courts ought to have given weight (which does not mean give res judicata) to the jurisdictional finding of the arbitral tribunal when exercising their discretion, under the New York Convention, to enforce awards notwithstanding the finding that one of the grounds for denying recognition existed.
The Shifting Tide of ESI Discovery Cost Allocation
Edward Pekarek
Abstract:
Regardless of the means by which data travels, or the media on which it is stored, it is now, without question, “black letter law that computerized data is discoverable if relevant.” New York law, however, is anything but well settled with regard to ESI discovery cost allocation. Neither the New York Court of Appeals, nor the state’s Civil Practice Law and Rules (CPLR), have yet to address the issue of ESI discovery costs, while a fissure between the approaches employed by judges in the New York state court system continues to grow. Federal district courts routinely resolve ESI discovery cost allocation issues equitably, and while minor differences exist in a handful of judicial districts, the Federal Rules of Civil Procedure were amended in 2006 to adopt the essence of the analytical framework established by somewhat celebrated Southern District of New York jurists.
The recent trend in New York state courts reveals a decisive move away from the supposed “general rule,” conjured mainly from one deeply flawed trial court decision, toward harmonization with the vastly more elegant federal jurisprudence of permissive cost-shifting for inaccessible ESI. This trend has been ratified locally by amended rules within the Supreme Court Commercial Division, and by a comprehensive manual prepared and proposed by the New York City Bar Association. On a national level, there has been a wave of amendments, including key changes in 2006 to the Federal Rules of Civil Procedure; proposals offered by the Federal Judicial Center, a consortium of state court Chief Justices, and the American Bar Association. In addition, there has been development recently of uniform ESI discovery rules by the same organization that created the Uniform Commercial Code; as well as principles and best practices advanced by the Sedona Conference.
Recent guidance by the Financial Industry Regulatory Authority (FINRA) has also embraced the ESI discovery logic utilized in this federal judicial district, recognizing the leading case in this line of jurisprudence as “a standard of necessary steps that must be taken to preserve and produce electronic data.” While some states continue to employ the antiquated and inequitable “requester pays” approach, there can be little debate that the increasingly rapid pace of technological advancement demands regular refinement of e-discovery law. Permissive case-by-case cost-shifting of inaccessible ESI, through a multi-factor analysis, is the appropriate standard for resolving discovery production cost disputes. This is especially true in securities arbitration, where economic and informational disparities between disputants are often substantial, sometimes to the point of debilitating a genuine search for the truth, and at times, a disputant’s life savings may hang in the balance. As Judge Scheindlin rightly recognized in Zubulake I, “discovery that would be too expensive for one [party] to bear would be a drop in the bucket for another.”
Regardless of the means by which data travels, or the media on which it is stored, it is now, without question, “black letter law that computerized data is discoverable if relevant.” New York law, however, is anything but well settled with regard to ESI discovery cost allocation. Neither the New York Court of Appeals, nor the state’s Civil Practice Law and Rules (CPLR), have yet to address the issue of ESI discovery costs, while a fissure between the approaches employed by judges in the New York state court system continues to grow. Federal district courts routinely resolve ESI discovery cost allocation issues equitably, and while minor differences exist in a handful of judicial districts, the Federal Rules of Civil Procedure were amended in 2006 to adopt the essence of the analytical framework established by somewhat celebrated Southern District of New York jurists.
The recent trend in New York state courts reveals a decisive move away from the supposed “general rule,” conjured mainly from one deeply flawed trial court decision, toward harmonization with the vastly more elegant federal jurisprudence of permissive cost-shifting for inaccessible ESI. This trend has been ratified locally by amended rules within the Supreme Court Commercial Division, and by a comprehensive manual prepared and proposed by the New York City Bar Association. On a national level, there has been a wave of amendments, including key changes in 2006 to the Federal Rules of Civil Procedure; proposals offered by the Federal Judicial Center, a consortium of state court Chief Justices, and the American Bar Association. In addition, there has been development recently of uniform ESI discovery rules by the same organization that created the Uniform Commercial Code; as well as principles and best practices advanced by the Sedona Conference.
Recent guidance by the Financial Industry Regulatory Authority (FINRA) has also embraced the ESI discovery logic utilized in this federal judicial district, recognizing the leading case in this line of jurisprudence as “a standard of necessary steps that must be taken to preserve and produce electronic data.” While some states continue to employ the antiquated and inequitable “requester pays” approach, there can be little debate that the increasingly rapid pace of technological advancement demands regular refinement of e-discovery law. Permissive case-by-case cost-shifting of inaccessible ESI, through a multi-factor analysis, is the appropriate standard for resolving discovery production cost disputes. This is especially true in securities arbitration, where economic and informational disparities between disputants are often substantial, sometimes to the point of debilitating a genuine search for the truth, and at times, a disputant’s life savings may hang in the balance. As Judge Scheindlin rightly recognized in Zubulake I, “discovery that would be too expensive for one [party] to bear would be a drop in the bucket for another.”
The Wild Arbitration Blows Retreat? On Implementation of the Unfair Contract Terms Directive in the Czech Republic
Tomas Pavelka
Abstract:
The EU Directive on unfair contract terms in consumer contracts (97/13/EEC) as a minimum harmonisation directive left open to Member State setting up more intensive measures to protect consumers. However the Czech Republic, stopping at the minimum level, allowed aggressive traders to incorporate in their form contracts arbitration clauses, which have led to a massive abuse of weak judicial control to the disadvantage of consumers. This paper focuses on the case-law of European Court of Justice on arbitration clauses in consumer contracts and its problematic implementation within Czech legal order as well as a welcomed recent shift in lower Czech national courts’ practice.
The EU Directive on unfair contract terms in consumer contracts (97/13/EEC) as a minimum harmonisation directive left open to Member State setting up more intensive measures to protect consumers. However the Czech Republic, stopping at the minimum level, allowed aggressive traders to incorporate in their form contracts arbitration clauses, which have led to a massive abuse of weak judicial control to the disadvantage of consumers. This paper focuses on the case-law of European Court of Justice on arbitration clauses in consumer contracts and its problematic implementation within Czech legal order as well as a welcomed recent shift in lower Czech national courts’ practice.
The Fiftieth Anniversary of the Steelworkers Trilogy: Some Reflections on Judicial Review of Labor Arbitration Decisions - Will Gold Turn to Rust?
David L. Gregory , Michael K. Zitelli and Christina E. Papadopoulos
Abstract:
In 1960, in the landmark Steelworkers Trilogy, the United States Supreme Court enthusiastically endorsed arbitration of grievances in private sector labor management relations. As a means of efficient and effective dispute resolution, labor arbitration was perceived as far superior to external litigation in court; labor arbitration was, and is, quicker and less expensive than most litigation. Over the course of the past half-century, the Supreme Court has reiterated and reaffirmed the classic benchmark principles of judicial deference to labor arbitration that the Court unequivocally elucidated in the Trilogy. With increasing frequency, however, some activist judges on the lower federal courts are seemingly predisposed to vacate labor arbitration decisions simply because the judge does not like the particular substantive result of the particular labor arbitration decision. This propensity of some of the lower federal courts to set aside labor arbitration decisions reached its zenith (or nadir, depending on one’s perspective) in the Sixth Circuit in 2006. This essay examines the Sixth Circuit experience with some particularity, analyzing what that Circuit’s pre and post 2006 practical experience and jurisprudence may auger for the future of labor arbitration, and of Alternative Dispute Resolution more broadly, in this 50th anniversary year of the Steelworkers Trilogy.
In 1960, in the landmark Steelworkers Trilogy, the United States Supreme Court enthusiastically endorsed arbitration of grievances in private sector labor management relations. As a means of efficient and effective dispute resolution, labor arbitration was perceived as far superior to external litigation in court; labor arbitration was, and is, quicker and less expensive than most litigation. Over the course of the past half-century, the Supreme Court has reiterated and reaffirmed the classic benchmark principles of judicial deference to labor arbitration that the Court unequivocally elucidated in the Trilogy. With increasing frequency, however, some activist judges on the lower federal courts are seemingly predisposed to vacate labor arbitration decisions simply because the judge does not like the particular substantive result of the particular labor arbitration decision. This propensity of some of the lower federal courts to set aside labor arbitration decisions reached its zenith (or nadir, depending on one’s perspective) in the Sixth Circuit in 2006. This essay examines the Sixth Circuit experience with some particularity, analyzing what that Circuit’s pre and post 2006 practical experience and jurisprudence may auger for the future of labor arbitration, and of Alternative Dispute Resolution more broadly, in this 50th anniversary year of the Steelworkers Trilogy.
When We Hold No Truths to Be Self-Evident: Truth, Belief, Trust, and the Decline in Trials
Lisa Blomgren Bingham
Abstract:
This article explores the relationship between the "vanishing trial" and the changing ways in which we think about truth. First, it briefly overviews how we think about knowing what is true: epistemology and the history of philosophy. Second, it looks to the philosophy of science and history of social science for new theories and methods about how we ascertain and construct meaning and what we believe to be real and true. Third, it examines our changing relation to information in the face of the "information explosion": information is the evidence upon which we reach a conclusion about what is true. Fourth, it relates these changes to the philosophy of law and theories of the jury and adversary system. Fifth, it examines what social science has taught us about truth, belief, trust, justice, and control over information. Finally, it addresses how these changes may explain why litigants are using mediation, arbitration, and other forms of appropriate dispute resolution in lieu of the adversarial civil trial. People are choosing to exercise control over what information is used in disputing and over who is using it for what purposes. This takes them away from the civil trial, a formalistic process with strict rules about who can be a witness, what they can say on the stand, what information is admitted as relevant and material to a decision, and what standards the decision-maker must use to evaluate that information. If complexity in the modern world has taught us anything, it is that we no longer hold much to be self-evident.
This article explores the relationship between the "vanishing trial" and the changing ways in which we think about truth. First, it briefly overviews how we think about knowing what is true: epistemology and the history of philosophy. Second, it looks to the philosophy of science and history of social science for new theories and methods about how we ascertain and construct meaning and what we believe to be real and true. Third, it examines our changing relation to information in the face of the "information explosion": information is the evidence upon which we reach a conclusion about what is true. Fourth, it relates these changes to the philosophy of law and theories of the jury and adversary system. Fifth, it examines what social science has taught us about truth, belief, trust, justice, and control over information. Finally, it addresses how these changes may explain why litigants are using mediation, arbitration, and other forms of appropriate dispute resolution in lieu of the adversarial civil trial. People are choosing to exercise control over what information is used in disputing and over who is using it for what purposes. This takes them away from the civil trial, a formalistic process with strict rules about who can be a witness, what they can say on the stand, what information is admitted as relevant and material to a decision, and what standards the decision-maker must use to evaluate that information. If complexity in the modern world has taught us anything, it is that we no longer hold much to be self-evident.
Abstract:
In 2010, the international community including the United Nations, European Union and United States imposed a series of economic and financial sanctions on the Iranian government for its controversial nuclear programme by restricting investments by multinational companies in the Iranian oil and gas resources. In summer of 2010, major oil companies began pulling out of the South Pars block which is the world's second biggest gas field situated in the Persian Gulf. It is expected that more companies will abandon their investment projects for fear of sanctions by the US treasury which targets both US and non-US companies with investments and economic interests in the Iranian petroleum industry. The exiting firms may experience problems in transferring their capital and machinery out of the Iranian jurisdiction and may suffer damages as a result of unfair and discriminatory treatment by the authorities including customs officials, banks, oil ministry, OIETAI and other public bodies. The only remedy available to the foreign investor is to claim compensation for interference or expropriation of its property rights in investment by bringing an arbitration proceedings against the Iranian government and/or state agencies. Iran is party to more than 50 BITs with capital exporting and developing countries which guarantee access to international arbitration pursuant to arbitration rules of ICSID, ICC and UNCITRAL. This article exemplifies the dispute resolution provision contained in Iranian BITs including consent to arbitration, jurisdiction of arbitral tribunal, arbitration procedures, applicable substantive law, location of arbitration and enforcement of arbitral award. The purpose of this article is to provide investors involved in disputes over investments with the Iranian government with the remedy to pursue their compensation claims in a "neutral, impartial and third party forum" which is based outside of the Iranian jurisidiction.
In 2010, the international community including the United Nations, European Union and United States imposed a series of economic and financial sanctions on the Iranian government for its controversial nuclear programme by restricting investments by multinational companies in the Iranian oil and gas resources. In summer of 2010, major oil companies began pulling out of the South Pars block which is the world's second biggest gas field situated in the Persian Gulf. It is expected that more companies will abandon their investment projects for fear of sanctions by the US treasury which targets both US and non-US companies with investments and economic interests in the Iranian petroleum industry. The exiting firms may experience problems in transferring their capital and machinery out of the Iranian jurisdiction and may suffer damages as a result of unfair and discriminatory treatment by the authorities including customs officials, banks, oil ministry, OIETAI and other public bodies. The only remedy available to the foreign investor is to claim compensation for interference or expropriation of its property rights in investment by bringing an arbitration proceedings against the Iranian government and/or state agencies. Iran is party to more than 50 BITs with capital exporting and developing countries which guarantee access to international arbitration pursuant to arbitration rules of ICSID, ICC and UNCITRAL. This article exemplifies the dispute resolution provision contained in Iranian BITs including consent to arbitration, jurisdiction of arbitral tribunal, arbitration procedures, applicable substantive law, location of arbitration and enforcement of arbitral award. The purpose of this article is to provide investors involved in disputes over investments with the Iranian government with the remedy to pursue their compensation claims in a "neutral, impartial and third party forum" which is based outside of the Iranian jurisidiction.
Abstract:
The phrase "mandatory arbitration" has come to refer to binding arbitration imposed by the stronger party on the weaker in an economic relationship through an adhesive contract clause. Critics have identified a series of concerns regarding the fairness of mandatory arbitration systems, including lack of consent, lack of due process, privatization of public law, shifting costs, and others. This Article argues that mandatory arbitration is not itself the problem. The problem is instead that in some instances, one party to the dispute has exclusive control of the design of the dispute-resolution system. Consequently, research on mandatory arbitration should concentrate on who is structuring it, how they structure it, why this is so, and how these choices affect dispute outcomes.
The phrase "mandatory arbitration" has come to refer to binding arbitration imposed by the stronger party on the weaker in an economic relationship through an adhesive contract clause. Critics have identified a series of concerns regarding the fairness of mandatory arbitration systems, including lack of consent, lack of due process, privatization of public law, shifting costs, and others. This Article argues that mandatory arbitration is not itself the problem. The problem is instead that in some instances, one party to the dispute has exclusive control of the design of the dispute-resolution system. Consequently, research on mandatory arbitration should concentrate on who is structuring it, how they structure it, why this is so, and how these choices affect dispute outcomes.
Oral Advocacy Training: a Beginner’s Look at the Willem C. Vis International Commercial Arbitration Moot from a Coaching Perspective
Leonila Guglya
Abstract:
The Article is based on the author’s personal experience of the participation as an oralist in W.C. Vis International Commercial Arbitration Moot – in 2004 and 2006, as an arbitrator and a team coach in 2007. It discusses practical dilemmas arising in course of the oral advocacy training of the Moot team participants, focusing on the issues of selection and motivation of oralists, organizing and carrying through internal and external pre-moot rehearsals, emphasizing at the meantime an importance of keeping a healthy spirit of team cooperation high in course of the practice phase. The Article is aimed at fostering the academic debates over the issues related to coaching of the Vis Moot teams among those involved in this sphere and so to enhance the cooperation therein.
Abstract:
The Kentucky Supreme Court has opined that the relevant provisions of the FAA and KUAA, cited above, are virtually identical, Louisville Peterbilt, Inc. v. Cox4. When a state statute is modeled on a federal one, typically, as to the substantive provisions of the statutes, Kentucky courts have been directed to adopt U.S. Supreme Court or Sixth Circuit law interpreting the federal statute when there is a lack of precedent in Kentucky.5 In Peterbilt, the Kentucky Supreme Court adopted the U.S. Supreme Court’s basic guide on interpreting the FAA as the way to interpret the KUAA, any doubts concerning the scope of arbitrable issues is to be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.
The Kentucky Supreme Court has opined that the relevant provisions of the FAA and KUAA, cited above, are virtually identical, Louisville Peterbilt, Inc. v. Cox4. When a state statute is modeled on a federal one, typically, as to the substantive provisions of the statutes, Kentucky courts have been directed to adopt U.S. Supreme Court or Sixth Circuit law interpreting the federal statute when there is a lack of precedent in Kentucky.5 In Peterbilt, the Kentucky Supreme Court adopted the U.S. Supreme Court’s basic guide on interpreting the FAA as the way to interpret the KUAA, any doubts concerning the scope of arbitrable issues is to be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.
On Repeat Players, Adhesive Contracts, and the Use of Statistics in Judicial Review of Employment Arbitration Awards
Lisa Blomgren Bingham
Abstract:
This Article empirically examines the repeat player employer and the use of personnel manuals, one form of contract of adhesion, in employment arbitration. First, it briefly reviews some of the salient cases that allow for the imposition of arbitration through an adhesive employment contract. Second, it summarizes prior empirical research on employment arbitration. Third, it reports the results of an empirical study on the repeat player effect as it relates to the presence of a personnel manual or handbook as the basis for arbitration. That study finds that repeat player employers do better in arbitration than one-shotters, and that employers arbitrating pursuant to a personnel manual do better than those arbitrating under an individual contract. Thus, adhesive contracts do put employees at a disadvantage. Fourth, the article examines some of the accounts for the repeat player effect in light of Marc Galanter's catalogue of advantages. Lastly, it discusses ways empirical analysis of arbitration awards should, and should not, be used in the judicial review of employment arbitration awards in light of the repeat player effect. It argues that statistics on an arbitrator's past record should not be used in judicial review for actual active bias of the arbitrator. However, undisclosed prior cases with the same employer are relevant evidence on the question of the reasonable appearance of arbitrator bias. Finally, statistical analysis on the set of cases decided under certain arbitration rules or protocols may be helpful in examining structural bias.
This Article empirically examines the repeat player employer and the use of personnel manuals, one form of contract of adhesion, in employment arbitration. First, it briefly reviews some of the salient cases that allow for the imposition of arbitration through an adhesive employment contract. Second, it summarizes prior empirical research on employment arbitration. Third, it reports the results of an empirical study on the repeat player effect as it relates to the presence of a personnel manual or handbook as the basis for arbitration. That study finds that repeat player employers do better in arbitration than one-shotters, and that employers arbitrating pursuant to a personnel manual do better than those arbitrating under an individual contract. Thus, adhesive contracts do put employees at a disadvantage. Fourth, the article examines some of the accounts for the repeat player effect in light of Marc Galanter's catalogue of advantages. Lastly, it discusses ways empirical analysis of arbitration awards should, and should not, be used in the judicial review of employment arbitration awards in light of the repeat player effect. It argues that statistics on an arbitrator's past record should not be used in judicial review for actual active bias of the arbitrator. However, undisclosed prior cases with the same employer are relevant evidence on the question of the reasonable appearance of arbitrator bias. Finally, statistical analysis on the set of cases decided under certain arbitration rules or protocols may be helpful in examining structural bias.
Abstract:
One of the principal objectives of the Workplace Relations Act 1996 (Cth) is to ensure that the primary responsibility for determining industrial relations outcomes rests with employers and employees. At the time of introducing the legislation, the Coalition Government made it clear that a related goal of the Act was to reduce the intervention of third parties in this primary relationship. However, in one of the commission’s most significant areas of growth, the parties are increasingly inviting the commission to resolve disputes through private arbitration. This article explores the role of the commission in private arbitration in light of the objectives of the legislation. In particular, the article outlines the growth of private arbitration in practice and the development of the commission’s role in private arbitration through the decisions of the High Court and the commission.
Multi-Party and Multi-Contract Arbitrations: Procedural Mechanisms and Interpretation of Arbitration Agreements Under U.S. Law
Irene M. Ten Cate
One of the principal objectives of the Workplace Relations Act 1996 (Cth) is to ensure that the primary responsibility for determining industrial relations outcomes rests with employers and employees. At the time of introducing the legislation, the Coalition Government made it clear that a related goal of the Act was to reduce the intervention of third parties in this primary relationship. However, in one of the commission’s most significant areas of growth, the parties are increasingly inviting the commission to resolve disputes through private arbitration. This article explores the role of the commission in private arbitration in light of the objectives of the legislation. In particular, the article outlines the growth of private arbitration in practice and the development of the commission’s role in private arbitration through the decisions of the High Court and the commission.
Multi-Party and Multi-Contract Arbitrations: Procedural Mechanisms and Interpretation of Arbitration Agreements Under U.S. Law
Irene M. Ten Cate
Abstract:
Most legal systems have developed mechanisms, such as consolidation of procedures, joinder of claims or parties, and intervention, to achieve efficient and fair procedural solutions in disputes involving more than two parties or claims relating to more than one contract. In arbitration, these devices are often not available. Arbitration rules generally do not address multi-party and multi-contract disputes, and the Federal Arbitration Act also does not provide for joinder or consolidation. This Note examines whether, in the absence of express legislative guidance, arbitral tribunals may nevertheless order joinder of parties or claims or consolidation of arbitrations under U.S. law. In particular, the Note explores tools of contract interpretation arbitrators may use to determine whether parties intended to agree to joinder or consolidation, even if the arbitration agreement does not expressly contemplate these devices.
Most legal systems have developed mechanisms, such as consolidation of procedures, joinder of claims or parties, and intervention, to achieve efficient and fair procedural solutions in disputes involving more than two parties or claims relating to more than one contract. In arbitration, these devices are often not available. Arbitration rules generally do not address multi-party and multi-contract disputes, and the Federal Arbitration Act also does not provide for joinder or consolidation. This Note examines whether, in the absence of express legislative guidance, arbitral tribunals may nevertheless order joinder of parties or claims or consolidation of arbitrations under U.S. law. In particular, the Note explores tools of contract interpretation arbitrators may use to determine whether parties intended to agree to joinder or consolidation, even if the arbitration agreement does not expressly contemplate these devices.
Abstract:
This book submission briefly describes the use of toys and tools to illustrate the different alternative dispute resolution processes.
This book submission briefly describes the use of toys and tools to illustrate the different alternative dispute resolution processes.
The Case Against Arbitral Awards of Specific Performance in Transnational Commercial Disputes
Troy E. Elder
Abstract:
Despite its common law origins as an exceptional form of relief, specific performance of contractual obligations in lieu of monetary damages has become a commonplace remedy in contract law in the U.S., and in civil and public international law. Moreover, U.S. courts have given arbitrators broad discretion to order specific relief. Routine use of this remedy in international commercial arbitrations, where privately chosen adjudicators resolve contract disputes between parties of different nationalities, would thwart the provisions of the New York Convention. The very structure of this treaty, which sets forth the terms for the recognition and enforcement of international arbitral awards by multiple commercial powers, contemplates awards for monetary damages.
Proponents of specific performance as an international arbitral remedy elevate the promisee’s interest in obtaining the benefit of its bargain over a systemic interest in the predictable enforcement of arbitral awards in foreign jurisdictions. While the New York Convention assigns to foreign courts the ministerial role of entering a judgment consistent with an international arbitral award, an award of specific performance would require one or more foreign courts to supervise its enforcement, a result not contemplated by the treaty that may also invite enforcing courts to revisit the merits of the award. This undermines the finality of arbitral awards that was secured by the treaty and frustrates the expectations of parties to international arbitration agreements. In the context of modern transnational commerce, an award of monetary damages for breach of contract is the only practicable form of final relief in international arbitrations.
The Changing Role of Evaluation in Commercial ADR
Dwight Golann
Despite its common law origins as an exceptional form of relief, specific performance of contractual obligations in lieu of monetary damages has become a commonplace remedy in contract law in the U.S., and in civil and public international law. Moreover, U.S. courts have given arbitrators broad discretion to order specific relief. Routine use of this remedy in international commercial arbitrations, where privately chosen adjudicators resolve contract disputes between parties of different nationalities, would thwart the provisions of the New York Convention. The very structure of this treaty, which sets forth the terms for the recognition and enforcement of international arbitral awards by multiple commercial powers, contemplates awards for monetary damages.
Proponents of specific performance as an international arbitral remedy elevate the promisee’s interest in obtaining the benefit of its bargain over a systemic interest in the predictable enforcement of arbitral awards in foreign jurisdictions. While the New York Convention assigns to foreign courts the ministerial role of entering a judgment consistent with an international arbitral award, an award of specific performance would require one or more foreign courts to supervise its enforcement, a result not contemplated by the treaty that may also invite enforcing courts to revisit the merits of the award. This undermines the finality of arbitral awards that was secured by the treaty and frustrates the expectations of parties to international arbitration agreements. In the context of modern transnational commerce, an award of monetary damages for breach of contract is the only practicable form of final relief in international arbitrations.
The Changing Role of Evaluation in Commercial ADR
Dwight Golann
Abstract:
This piece describes how processes of non-binding dispute resolution in civil cases changed over the past twenty-five years from heavy reliance on court-like evaluative processes such as advisory arbitration and mini-trials, and toward much greater use of facilitative mediation. The article argues that commercial mediation has evolved into a mixed form of facilitation and evaluation, and that in current practice “evaluation” consists of a spectrum of mediator interventions, ranging from “reality testing” questions to hard, global opinions about case value. The content of evaluations has also changed; they are no longer limited to the legal merits and more often consist of the neutral’s assessment of party attitudes and the bargaining situation.
This piece describes how processes of non-binding dispute resolution in civil cases changed over the past twenty-five years from heavy reliance on court-like evaluative processes such as advisory arbitration and mini-trials, and toward much greater use of facilitative mediation. The article argues that commercial mediation has evolved into a mixed form of facilitation and evaluation, and that in current practice “evaluation” consists of a spectrum of mediator interventions, ranging from “reality testing” questions to hard, global opinions about case value. The content of evaluations has also changed; they are no longer limited to the legal merits and more often consist of the neutral’s assessment of party attitudes and the bargaining situation.
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