Abstract Summarizes and compares essential features. Purpose of removing civil cases from the courts. Pre-dispute agreement to arbitrate (PDAA). Burden of persuasion. Usefulness in resolving civil disputes in the United States. Negotiation, litigation, adversial litigation. Binding and non-bindingarbitration and mediation. Private arbitration. Court-annexed arbitration. Cites laws, statutes and cases.
From the Paper "This research paper summarizes and compares the salient features of mediation and arbitration and comments on their relative utility in resolving American civil disputes.
Overview and comparison
When a civil dispute arises between different members of society, it may be resolved in a variety of ways. In negotiations, the parties resolve their dispute directly without the intervention of third parties. They may invoke the power of the state by initiating litigation in the civil courts. Since the 1970s, the use of various forms of alternative dispute resolution (ADR) techniques, principally arbitration and mediation, has greatly expanded. This growth has been fueled by a broadly held consensus that adversarial litigation suffers from severe..."
Abstract Three overlapping systems of international arbitration have developed to resolve international business disputes: (1) maritime arbitration of disputes related to ocean shipping and transportation; (ii) arbitration of disputes arising out of international trade in goods and services; and (iii) arbitration of disputes arising out of private foreign direct investment (FDI) and other trans-national financial transactions. This paper examines the effectiveness of international arbitration as a means of resolving business disputes arising out of international trade in goods and services and investment. The paper summarizes the historical roots of commercial arbitration, and the fundamental steps taken in the postwar period to establish a solid national and international legal and institutional framework to permit it to operate effectively.
Paper Headings:
Introduction
Defining Characteristics and Appeal
What is Commercial Arbitration?
Appeal of Commercial Arbitration in an International Context
Pre-1945 Historical Evolution of Arbitration Ancient Origins
Arbitration in Medieval Europe
Decline of the Effectiveness of Commercial Arbitration Establishing An Effective Legal Framework
Hostility of Other Legal Systems to Commercial Arbitration Summary
From the Paper "Thousands of (but certainly not all) maritime and international commodity arbitrations are handled today in many of the world's great ports in a similar matter of fact and informal manner. Due to the scientific, mercantile, industrial and post-industrial revolutions which have occurred since the 16th century, the volume of world commerce has expanded and the means and methods of production, distribution and transportation have become much more complex. Global trade increased by an average per annum of 4.57 percent during the period 1870-1929, then (due to the Great Depression and World War II) by less than one per cent between 1929 and 1945. Since then, world trade in goods and services has mushroomed, increasing, according to the World Trade Organization, by an average of six and one half percent per annum between 1958 and 1993, from just $2.62 billion in 1986 to $6.3 billion in 1996."
Abstract This paper explains that the arbitral procedure refers to the various stages involved in the adjudication of a dispute by one or a panel of arbitrators leading to the rendering of an arbitral award. In the case of international arbitration, the author stresses it is necessary to determine which law is going to apply to such a procedure. The paper underscores that the freedom of the parties andof the arbitrator to select the applicable law to the arbitral procedure is broad and may extend well beyond the reference to legal norms; however, the respect of a procedural public order remains the main basic limit to such freedom given the adjudicatory nature of arbitration. The paper includes footnotes instead of a works cited page.
Table of Contents:
The Significant Freedom of the Parties in the Adoption of the Procedural Law
The Impact of the Localization of the Arbitration The Ability of the Parties to Resort to Any Law
The Default Role of the Arbitrator in Charge of Filling the Vacuum Juris
A Duty to Make a Decision on the Applicable Law
The Respect of a Transnational Procedural Order
From the Paper "In any event, the freedom of the parties and, in case of default, the freedom of the arbitral tribunal remain subject to the respect of some procedural principles. Indeed, the dual nature of arbitration, both contractual and adjudicatory, requires its actors to take into account some kind of "transnational procedural public order". This notion of procedural public order usually includes similar principles found in most domestic laws on arbitration (as well as institutional rules) such as the equality of the parties, the adversarial principle or the duty to act independently and impartially."
Tags: methodology anational localization case, domestic law
Abstract This paper explains that the French law of international arbitration clearly focuses on the importance of making arbitration as efficient as possible by avoiding unnecessary interference with domestic courts. French case law on international arbitration, the author relates, has proved very liberal in that it has repeatedly affirmed a general principle of autonomy of the arbitration clause, which has helped reinforce the role of the arbitrator through the "competence-competence" principle. Further, the paper investigates the principle of non-jurisdiction if there are no pending proceedings before an arbitral tribunal"manifest nullity" or "manifest inapplicability" of the arbitration clause. Sources are cited as footnotes instead of in a bibliography.
Table of Contents:
The Role of the Arbitrators The Role of the Courts
From the Paper "However, French law provides for two exceptions to this principle of non-jurisdiction if there is no pending proceedings before an arbitral tribunal : "manifest nullity" or "manifest inapplicability" of the arbitration clause. Therefore, in order to invoke one of these exceptions, the judge will have to be satisfied that the obvious nullity or inapplicability results from a bare and quick analysis of the clause, which, in practice, will be rarely established."
Tags: separability jurisdictions, united states, formulas validity
Abstract This paper addresses the issue of arbitration in the family law sphere. It purports to determine when and how arbitration should be used in the family law scheme. The paper also considers whether it is advisable to utilize arbitration in family law scenarios. A number of scenraios are presented concerning when it is advisable to utilize arbitration in family law disputes. The paper contains figures and copies of original sources.
Table of Contents:
Introduction
Arbitration Depends On...
Mediation
Compared to Going to Court...
Challenges in Arbitration Considerations
The Issue of Arbitration in Family Law
Family Law
What the American Family Needs?
Custody and Support
Divorce
Arbitration's Flexibility
Michigan Supreme Court
When Disputing Parties "Click"
Conclusion
Like an Hourglass...
From the Paper "Today, some disputing parties may now begin to find that a resolution is only a click away. Not only can online mediation or arbitration offer physical distance that may be needed to help settle emotional disputes between parties who cannot even bear to look at each other; it may also contribute to decreasing arbitration costs. Robert Ketcham, a Maryland mediator who lives in Easton, Md., of Lifebridge Mediation Services, hosted a dispute resolutions where estranged family members logged on to an online conference from separate locations. From another location, a mediator monitored the two parties' exchanges and then listened to feedback from ach family member."
Abstract This paper proposes a thesis that will show that Saudi Arabia is not an ideal destination for international commercial arbitration. To establish this claim, the writer explains that, using comparative law, the research will come up with reasonable arguments to show that in comparison to other countries, Saudi Arabia does not offer a viable environment for solving international commercial disputes. The political, cultural and religious factors that impact on arbitration laws are considered in the research to establish Saudi Arabia's viability to international arbitration. The study also aims at providing suggestions that will help improve Saudi Arabia to make it suitable for solving international commercial disputes as an arbitration seat.
Outline:
Introduction
International Commercial Arbitration Saudi Arabia Law on Arbitration Significance of the Study
Aim and Context of Study
Approach and Methodology
Contribution to Knowledge
From the Paper "Saudi Arabia has made quite a considerable advancement in the use of arbitration law since its inception in 1983. It is however questionable whether the provisions of this law can effectively solve disputes from outside the border. This is a consideration made following the rising need for international commercial arbitration services as the world turns into a global village (Lew, Mistelis and Kroll, 2003). Interaction between laws, culture and religion continue to limit the ability of Saudi Arabia in providing such services. As a result, there is a need to make improvements so as minimize the shortcomings which will make it more suitable for international commercial arbitration."
Tags: culture tradition Islamic UNCITRAL Shari'a oil blockage, Gulf State, Quran Muslim
Abstract International commercial arbitration has been helping the international trade and commerce by being mediator in the occurrence of disputes. This paper explains how knowing and learning of its powers, duties and jurisdiction is essential to parties concerned in arbitration in the event of resolving disagreements. This paper provides information on International Commercial Arbitration. It also examines the procedural aspects prevailing in the international arbitration, specific issues, as well as court proceedings. Part of which, being a judicial body, is the discussion of the basic and fundamental approach of laws of most governing arbitral institutions.
From the Paper "In events when business parties from different countries have disputes concerning commercial problems, litigation process often leaves them in expensive and frustrating procedures of finding international courts to resolve their cases. Unfortunate sometimes, the judgment imposed by courts is impossible to enforce. As a solution to this difficulty, arbitration was organized to facilitate the resolution of commercial disputes.
The International Commercial Arbitration flourished with the development and expansion of international trade and commerce. International methods of resolving disputes continuously develop and being nourished by the experience gathered from the various arbitration cases. Its purpose and function is to act as an arbitrator between parties from different nations with commercial disputes."
Abstract This paper explains that, for more than a decade, scholars and judges of the legal world of international arbitration have been debating if a national court must enforce a foreign arbitral award that has been set aside by the authorities of the country where the award was made. The core issue, the author points out, relates to the identification of the legal order to which the arbitral award, which is being rendered in a given country, is said to belong. The paper presents cases that support showing deference to the judge of the seat and cases that support treating the arbitral award as an international decision. The sources are listed as footnotes instead of in a bibliography.
Table of Contents:
The Case for Showing Deference to the Judge of the Seat
The Case for Treating the Arbitral Award as an International Judicial Decision
From the Paper "This is brightly illustrated by a 1999 decision Baker Marine where the Second Circuit declined to enforce two awards made in Lagos, which had been set aside by the Nigerian Federal High Court for various reasons including excess of jurisdiction of the arbitrators and improper award of punitive damages . The US Court of Appeals considered that the parties had chosen Nigerian law to govern both their arbitral proceedings and their substantive rights and that therefore the US public policy on arbitration directed the judges to give effect to the intent of the parties by respecting the outcome of the dispute as decided under Nigerian law."
Tags: identification, punitive damages, baker marine, norsolor, french case law
Abstract This essay describes conflict resolution with specific reference to third party intervention (in the form of mediation and arbitration). In addition, it argues that third party intervention is not a simple, objective technique that can solve any conflict situation, but that in essence, the effect of third party intervention (such as mediation and arbitration) is dependant on many different psychological processes. These psychological processes are examined. Finally, the essay views the effectiveness of third party intervention in the South African context. In doing the above, the essay defines certain processes such as conflict, mediation, arbitration and third party intervention.
From the Paper "According to Erasmus et al, conflict is an extremely complex phenomenon that can be caused by many different sources (such as two parties competing for the same job or two parties having differing value systems or ideologies). In order to effectively manage conflict, it is necessary to identify the actual causes of the conflict (Erasmus et al, 1992). In addition, conflict can arise in virtually any social setting and it can be between or within nations, organizations, groups or individuals (Rubin, 1994).There are four different classifications of organizational conflict given by Erasmus et al. These are intrapersonal conflict, (conflict that occurs within the individual due to tasks, roles and interests which do not match the individual's expertise), interpersonal conflict (conflict between two individuals), intragroup conflict (conflict among the members of the same group), and intergroup conflict (conflict between two groups, such as between a trade union and management) (Erasmus, et al, 1992)."
Tags: african, arbitration, conflict, context, interventions, mediation, party, south, third
Abstract This paper examines the issue of arbitration and insurance claims. It begins by explaining a series of basic insurance terminology and then presents a history of the practice of insurance arbitration. The writer then explains the process of arbitration and insurance claims and how the process has changed over the years.
From the Paper "Almost thirty years ago, the Committee on Insurance Arbitration recognized the insurance industry's need for a Property Arbitration Forum. Today, its' successor committee is the largest system of its kind in the world. There was clearly a need to create a legal entity to administer the arbitration programs, and this concern led to the creation of a not-for-profit corporation that replaced the Committee on Insurance Arbitration. The Committee on Insurance Arbitration incorporated in 1981, under the corporate name of Insurance Arbitration Forums. Insurance Arbitration Forums remained the corporate name until 1986, when the Board of Directors eliminated the word "Insurance" from the name. This change reflected the expansion of Arbitration Forums' programs to include arbitration situations outside the insurance arena, although these additional mediation and arbitration services continued to fulfill the needs of the insurance industry. Because Arbitration Forums are intended to provide an objective and neutral administrative service, Arbitration Forums are considered to be respected and efficient providers of arbitration services. Arbitration is a means of settling controversies without resorting to litigation. Agreements to arbitrate are generally put into writing, and signatories are contractually obligated to arbitrate."
Abstract The purpose of this essay is to familiarize oneself with analyzing grievance cases. Within this paper are two arbitrator reports of grievances brought to arbitration. These cases are two common types of grievances; a grievance filed against disciplinary action taken by management and a seniority grievance. The reports are written based on reference to an appropriate collective agreement and past cases.
From the Paper "Definition of the issue brought to arbitration This is a discipline issue over an off-site incident that occurred in the parking lot of a licensed establishment over a work-related matter that turned into a brawl. Labeled "Physical Contact -- Threatening of Management Personnel," it revolves around a wrongful dismissal claim launched by Fred Cummings and four other employees who were also discharged after the incident. Facts of the case On March 4, four management employees and five employees who are bargaining-unit members clashed over work-related dispute at the Crossway Tavern. First, there was a verbal incident inside the tavern."
Abstract This paper discusses the success of international commercial arbitration among private actors and the desire of many prominent legal systems to ensure the respect of their public policies, especially in the business sector. It examines the US approach with the well-known Mitsubishi decision of 1985 and then looks at the French approach in the landmark Labinal case.
Table of Contents:
US and France : A Convergent Approach as to the Arbitrability of Competition Law
The US Approach : The Mitsubishi Case
The French Approach : The Labinal Case
US and France : A Divergent Approach as to the Notion of "Second Look"
A Large Appreciation of the "Second Look" according to the American and the European Case Law
The Controversial and Restrictive Approach of the Recent French Case Law on "Second Look"
From the Paper "In his commentary on the decision, Christophe Seraglini clearly showed his disappointment as regards the outcome of the case, insofar as the equilibrium to be found between the prohibition of judicial review on the merits and the necessary respect of competition law issues seemed broken in his eyes. In particular, he pointed towards the danger of an artificiality of the control of the award in these conditions, which could lead in the future to an inefficient protection of the international public order . In any event, such criticisms of the approach of the Cour d'Appel de Paris thus indicate that the debate has now shifted from the scope of the notion of "arbitrability" itself to the role of the judge a posteriori, to the overall benefit of international arbitration."
Abstract This paper discusses the term 'double bind', first introduced by Gregory Bateson et al in their work entitled, "Towards a Theory of Schizophrenia". The paper explains that a double-bind describes a contradiction of sorts, especially between familial relations, and characteristically communicates a negative tone towards the subject or victim. The paper attempts to offers a more informed perspective on Bateson's double-bind theory in order to provide insight as to how people use language in order to communicate order(s) and tone. The paper uses MLA style footnotes and in-text citation but does not include a works cited page.
From the Paper "A double bind has three basic requirements: a first order (premise 1), a second order (premise 2), and a conclusive tone (conclusion). In the aforementioned example, the premise 1 is "go ahead, criticize me," the premise 2 is "strongly hints," and the conclusion is that "all effective criticism...will be very unwelcome." It should be noted that the second order or the premise 2 does not have to be a verbal command/order, but can be communicated in any sort of linguistic communication (by gestures, tones, and the like). This is the basic formula for a double bind, which is can obviously be seen as a part of daily interaction between people. "
Why international jurisprudence should avoid claims of universality, and focus on arbitration and crimes against humanity in small or defeated nations.
930 words (approx. 3.7 pages), 2 sources, 2002, $ 33.95
Abstract This paper discusses the role that international jurisprudence plays in conflicts between nations, and how the role of the international courts is being abused by nations, who want to use the reaps of war, rather than negotiations, to settle their disputes.
From the paper:
"The ICJ reveals itself as impotent even when adjudicating against weaker nations, as illustrated by its farcical order that Iran free its American hostages taken after the Embassy was stormed (Meyer 127). Whether with great powers or less powers, international jurisprudence is helpless to resolve conflicts in which one party merely desires to exploit its power.
Where both parties are mutually interested in an arbitrated solution to a dispute, however, international jurisprudence is useful."
Tags:arbitration, court, icj, jurisprudence, nations, un, united, law, war, power, nicaragua, new, zealand, melos
Abstract This paper presents an overview of the advantages and disadvantages of the international arbitration process. This process is presented in an outline form.
