Academic literature on the topic 'Litigation and arbitration'
Create a spot-on reference in APA, MLA, Chicago, Harvard, and other styles
Consult the lists of relevant articles, books, theses, conference reports, and other scholarly sources on the topic 'Litigation and arbitration.'
Next to every source in the list of references, there is an 'Add to bibliography' button. Press on it, and we will generate automatically the bibliographic reference to the chosen work in the citation style you need: APA, MLA, Harvard, Chicago, Vancouver, etc.
You can also download the full text of the academic publication as pdf and read online its abstract whenever available in the metadata.
Journal articles on the topic "Litigation and arbitration"
1
Nater-Bass, Gabrielle. "Class Action Arbitration: A New Challenge?" ASA Bulletin 27, Issue 4 (December 1, 2009): 671–90. http://dx.doi.org/10.54648/asab2009063.
Full textAbstract:
With the increasing use of arbitration clauses in standardized mass contracts, questions have arisen regarding the admissibility and applicability of the class action to the field of arbitration. The US appears to have now given «class action arbitrations» the green light. Class actions, therefore, are no longer limited to state court litigations in the US, but are now regularly seen in arbitration proceedings as well. Since the beginning of 2000, many European countries have also started to adopt new legislation regarding class, mass and group action litigation. Thus, Europe can no longer be perceived to be entirely opposed to class or mass action litigation in principle. It could therefore be only a matter of time, before first class action arbitrations are also initiated in Europe. The article seeks to shed some light on various questions arising from the combination of class actions and arbitration. In particular, after analyzing the background of class action litigation in the US, the challenges associated with class action arbitrations are described and the main obstacles to European class action arbitrations discussed. Finally, some thoughts regarding how Europe can prepare itself for class action arbitration are provided.
2
Leake, Timothy. "Arbitration Waiver and Prejudice." Michigan Law Review, no. 119.2 (2020): 397. http://dx.doi.org/10.36644/mlr.119.2.arbitration.
Full textAbstract:
Arbitration agreements are common in commercial and consumer contracts. But two parties can litigate an arbitrable dispute in court if neither party seeks arbitration. That presents a problem if one party changes its mind and invokes its arbitration rights months or years after the lawsuit was filed and substantial litigation activity has taken place. Federal and state courts agree that a party can waive its arbitration rights by engaging in sufficient litigation activity without seeking arbitration, but they take different approaches to deciding how much litigation is too much. Two basic methods exist. Some courts say waiver requires the party opposing arbitration to show it would be prejudiced by the delay. Others say that waiver does not require a showing of prejudice. This Note demonstrates that the presence or absence of a prejudice requirement does not accurately capture the disagreements between the federal circuit courts. Indeed, some circuits that impose a prejudice requirement will find waiver in circumstances where other courts that do not impose a prejudice requirement will not. These divergent approaches result in uncertainty, delay, and expense, undermining arbitration’s benefits. To resolve the circuit split, this Note proposes a bright-line standard under which engaging in litigation never supports a finding of waiver. It also shows that this approach is consistent with common law waiver doctrine and the Federal Arbitration Act.
3
Bello, Adesina Temitayo. "Why Arbitration Triumphs Litigation : Pros of Arbitration." Singaporean Journal of Business , Economics and Management Studies 3, no. 2 (September 2014): 32–38. http://dx.doi.org/10.12816/0007337.
Full text
4
Mimoso, Maria Joao. "The myth of absence of lex fori towards the international arbitrator." New Trends and Issues Proceedings on Humanities and Social Sciences 3, no. 4 (March 22, 2017): 241–48. http://dx.doi.org/10.18844/prosoc.v3i4.1578.
Full textAbstract:
The national and foreign doctrines uphold the absence of lex fori for the international arbitrator since the origin of the international arbitration. Our goal is to emphasize the demand of electing a lex fori for the international arbitrator for as much there is a collection of issues concerning the intervention of the State Courts in the role of arbitration support. The lex fori, that is supposed to inquire, will assist the arbitrator in determining the applicable law to the dignity of the dispute, and will regulate, undoubtedly, the litigation issues of arbitration. Based on the predominately upheld position in the doctrine, we will provide evidence to the specific limitations of the most aimed efficacy of the arbitration decisions. We will demonstrate through the jurisprudential (arbitration) analysis the necessity of appealing to the State Courts, excelling their contribution for the arbitration success. For the international arbitrator, the focus of the arbitration in the quality of lex fori comes up as important. We will draft its potential regulation capacities while cohesive juridical system, mainly in the dissension subsystem, the principles and proceeding rules, without forgetting the legitimacy to apply other transnational system rules To deny the existence of a lex fori to the international arbitrator is a redundancy, for, beyond the arbitrator having a lordship, the arbitration court also has a lex fori.Keywords: arbitration; arbitrator; international; lex fori
5
Posthuma, Richard A., Gabriela L. Flores, James B. Dworkin, and Samuel Pavel. "Social context and employment lawsuit dispute resolution." International Journal of Conflict Management 27, no. 4 (October 10, 2016): 547–69. http://dx.doi.org/10.1108/ijcma-10-2015-0072.
Full textAbstract:
Purpose Using an institutional theory perspective (micro and macro), the authors examined employment lawsuits across case type and alternative dispute resolution methods (negotiated settlements versus trials and arbitrations). Design/methodology/approach The authors examined actual data from US federal court lawsuits (N = 98,020). The data included the type of lawsuit, the dispute resolution method used and the outcome of the lawsuit in terms of the dollar amounts awarded. Findings The results show that employers were more likely to win in high social context cases (civil rights) than in other cases (Employment Retirement Income Security Act of 1974, ERISA). In arbitrations, plaintiffs won more frequently and were awarded higher amounts in arbitration than in court trials. In arbitration, plaintiffs received more in high social context cases than in other cases. Practical implications The results show that employers lose more often and in larger dollar amounts in arbitration than in litigation. However, if arbitration rulings more closely matched the likely outcomes of trials, subsequent litigation would be less likely to be overturned, and transaction costs would be reduced. If this were the case, the arbitration of employment lawsuits would more closely match the arbitration of contractual grievances under the typical labor relations system, where the arbitrator’s decision is usually final and binding. This could be a better outcome for all stakeholders in the dispute resolution process. Originality/value This is the first study of its kind to examine actual workplace conflicts that result in employment-related lawsuits from the perspective of social contextual factors.
6
Seyadi, Reyadh Mohamed. "Intellectual Composition of Arbitral Tribunals According to the New Saudi Arbitration Law." Arab Law Quarterly 33, no. 1 (December 12, 2019): 99–108. http://dx.doi.org/10.1163/15730255-12331028.
Full textAbstract:
Abstract One significant feature of arbitration that distinguishes it from litigation in national courts, is the parties’ freedom to select the arbitrator or members of the arbitral tribunal familiar with the kind of dispute that might arise or already has arisen. In 2012, a new arbitration law was issued in the Kingdom of Saudi Arabia (KSA) inspired by the texts of the Model Law on International Commercial Arbitration. In all its provisions it included the requirement not to violate Sharīʿah law (Islamic legal tradition). However, according to this law, the sole arbitrator or presiding arbitrator must hold a Bachelor of Laws (LLB) or Sharīʿah law degree. This provision is mandatory, and the parties cannot agree otherwise. This article seeks to provide some thoughts on this restriction through an analysis of arbitrator qualifications under Sharīʿah law in order to provide a better understanding of the position adopted by the KSA Arbitration Law.
7
Korn, David, and David Rosenberg. "Concepcion's Pro-Defendant Biasing of the Arbitration Process: The Class Counsel Solution." University of Michigan Journal of Law Reform, no. 46.4 (2013): 1151. http://dx.doi.org/10.36646/mjlr.46.4.concepcions.
Full textAbstract:
By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion entrenched a potent structural and systemic bias in favor of defendants. The bias arises from the parties' divergent stakes in the outcome of the common question litigation in individual arbitrations: each plaintiff will only invest to maximize the value of his or her own claim, but the defendant has an incentive to protect its entire exposure and thus will have a classwide incentive to invest more in contesting common questions. This investment advantage enables the defendant to wield superior litigation power against each plaintiff skewing the outcome of individual arbitrations in its favor and frequently rendering claims not worth filing. Concepcion perpetuates the bias by precluding the use of a class arbitration solution. We propose that courts neutralize the Concepcion bias by appointing class counsel to represent each plaintiff in individual arbitrations. Without threatening Concepcion's holding that arbitral efficiency precludes class arbitration unless the parties specify otherwise, the class counsel solution equalizes the parties' investment incentives to transform individual arbitrations into a socially useful legal system for promoting the deterrence, compensation, and other public policy objectives of federal and state substantive law.
8
Gjorgjioska, Emilija, Zorica Stoileva, and Dijana Gorgieva. "INTERIM MEASURES IN ARBITRATION." Knowledge International Journal 28, no. 6 (December 10, 2018): 2155–60. http://dx.doi.org/10.35120/kij28062155e.
Full textAbstract:
In the arbitration, just like in civil litigation, it may be necessary before the final merit award is rendered by the arbitral tribunal, the relations between the parties to be temporarily settled. The need for ordering interim measures before or during an arbitration may arise in order to create conditions for maintaining the existing situation untilthe arbitration settlement of the dispute, facilitating the enforcement of the potential condemnatory arbitration award or faster conduct of the arbitration.Due to these advantages of the interimmeasures, the problem of interim measures in the modern arbitration process theory and practice gets more and more important. In the context of this, the questions arise what types of interim measures and under what conditions can be ordered in the arbitration?Who has the authority to order inerim measures: the state court or arbitrator of the arbitration tribunal or arbitrator for emergencies, and etc. Regarding the types of interim measures that can be ordered before or during the arbitration, there are: conservation, temporary, procedural-facilitating, record-keeping and execution-enforcement measures. The conditions for ordering each of these measures are specific and depend on the purpose and function of the interim measure itself. Regarding the dilemma who is auhtorized to order interim measures in the arbitration, it must be emphasized that the older arbitration theory and practice that has been created around state protectionist legal politics accepts the position that only the state court can order inerim measures while the contemporary arbitration theory and practice proves that the arbitrator of the arbitration court (more often) or an emergency arbitrator (less often) should order the imerim measures in the arbitration. It is precisely because of these problems and dilemmas that still baffle the science of the arbitration procedural law the subject of this paper will be the legal regulation of the subject matter of the interim measures in the Macedonian arbitration legislation. For this purpose, an analysis will be made of the positive legal provisions of the Law on Litigation Procedure of the Republic of Macedonia which regulates the domestic arbitration, the Law on International Commercial Arbitration of the Republic of Macedonia, which regulates the international arbitration and the Rules of The Permanent court of Arbitration attached to the Economic Chamber of Republic of Macedonia that apply to resolve arbitration disputes with and without a foreign element and will be analyzed whether they regulate and to what extent they regulate the issue of ordering of inrim measures in the arbitration. This will be done in order to conclude whether there is a need for amendments of the Macedonian Arbitration Legislation in order for the Macedonian arbitration procedural right to be in line with the modern arbitration tendencies for ordering interim measures in the arbitration, primarily the UNCITRAL Model Law.
9
Dawson, Georgia, and Kate Apostolova. "Banks as Claimants in Investment Arbitration." Asian International Arbitration Journal 16, Issue 2 (November 1, 2020): 93–112. http://dx.doi.org/10.54648/aiaj2020017.
Full textAbstract:
Historically, banks have tended to prefer litigation over arbitration for their disputes. However, in recent years, banks have increasingly been using international arbitration instead, particularly when doing transactions in Asia and in emerging markets. The 2018 Queen Mary International Arbitration Survey also concluded that financial institutions, including banks, and their counsel are ‘contemplating arbitration with much greater interest than ever before’. In addition to using international commercial arbitration more often, banks have increasing sought to benefit from treaty-based international investment arbitration. The protections afforded in investment treaties mitigate some of the key risks banks face when investing abroad, such as having their investment nationalized or being subjected to unfair investigations. This article focuses on banks as claimants in treaty-based investment arbitrations, a subject not addressed in commentaries. It examines the publicly available investment arbitration awards in cases brought by banks against States and sets out to identify some key trends and themes. banks, investment arbitration, jurisdiction, investor, investment, fair and equitable treatment, expropriation
10
Boshoff, L. L. "Saudi Arabia: Arbitration vs Litigation." Arab Law Quarterly 1, no. 3 (1985): 299–311. http://dx.doi.org/10.1163/157302585x00518.
Full textDissertations / Theses on the topic "Litigation and arbitration"
1
Lee, Rainbow Lai Yee. "What are the comparisons of international litigation and arbitration in mainland China." access abstract and table of contents access full-text, 2006. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b21324268a.pdf.
Full textAbstract:
Thesis (M.A.)--City University of Hong Kong, 2006."A dissertation paper undertaken in partial fulfillment of the Master of arts in arbitration and dispute resolution." Title from title screen (viewed on Sept. 20, 2006) Includes bibliographical references.
2
Abdullah, Muhammad Tahir. "Role of UAE courts in international commercial arbitration." Thesis, University of Bedfordshire, 2013. http://hdl.handle.net/10547/305727.
Full textAbstract:
Concept of arbitration has been prevalent, historically, in the Middle East since the early days of Islam. The arbitral process has been problematic in the UAE however, it has not been until recently that the UAE has recognized the importance of arbitration as a powerful dispute resolution alternative and revised its legislation to accommodate the proceedings of domestic and international arbitration. In the past, foreign investors have been reluctant to select the UAE seat for their arbitration proceedings. There has been a perception that, as a general rule, the practice of international commercial arbitration in the Middle East is still in its infancy. The UAE is now demonstrating to the international community that it has the necessary infrastructure and laws in place to successfully count itself as one of the key arbitration players, alongside London, Paris and Hong Kong. This has been the result of the UAE updating their laws, reforming dispute resolution practice and procedures and through the establishment of key regional arbitration centres. The UAE's accession to the New York Convention was also seen as a significant step in demonstrating the UAE's commitment to foreign investors and the international community. Under Federal Decree No. 43 of 2006, the UAE managed to accede to the New York Convention. The UAE's accession is considered as a mile stone towards provision for a more straightforward arbitral process and enforcement of foreign arbitral awards in other Convention states. As a recent development, the UAE has evidenced the joint venture between the Dubai International Financial Centre ('the DIFC') and the London Court of International Arbitration ('the LCIA'), in February 2009, to create the DIFC-LCIA Arbitration Centre ('the DIFC~LCIA'). The DIFC-LCIA operates alongside the longer-established Dubai International Arbitration Centre ('the DlAC'). Both offer their own procedural rules and regulations for the amicable settlement of disputes through arbitration. The Courts role is vital in an arbitral proceeding in any jurisdiction. Although arbitration is believed as a court-free, independent forum for dispute resolution; the court plays fundamental role to ensure that the arbitral proceeding is taking place in a moderate and independent decorum. The UAE Court's role towards the International commercial arbitration has been very problematic and the courts historically used to intervene in the arbitral proceeding over tiny issues. The new UAE arbitration laws has changed the situation and curtailed the courts powers to interfere the arbitral proceeding. At present, the arbitration in the UAE is more independent and straightforward. The proposed UAE arbitration law has much more similarities with the Model Law UNCITRAL and meets the International standards. A lot of work still has to be done in order to make the arbitration more independent, straightforward and friendly in the UAB. The Court's role is vital and is required to be more supportive then it is at present in the arbitral process.
3
Alba, Betancourt Ana Georgina. "Cross-border conflicts of patents and designs : a study of multijurisdictional litigation and arbitration procedures." Thesis, Queen Mary, University of London, 2015. http://qmro.qmul.ac.uk/xmlui/handle/123456789/8918.
Full textAbstract:
This thesis examines procedural litigation problems arising when two parties have a conflict involving the same patent or design, with an impact in several jurisdictions, taking as a case study the litigation procedures of Apple and Samsung. The thesis asks whether this type of dispute is best resolved through a single procedure. If so, what would be the circumstances surrounding such procedure in terms of jurisdiction, applicable law, preliminary injunctions and enforcement of the decisions? It first identifies the problems related to the type of dispute when taking parallel actions in different National Courts. Then it examines the European litigation procedure of patents and designs and assesses how this system addresses the inconsistency of the national litigation regime. It argues that in relation to patents, the Unitary Patent Court (UPC) has the potential to solve some of the problems identified in the thesis and that a similar unitary system should be extended to disputes involving designs. However, in the absence of an effective international court system outside the EU for global disputes, it suggests that a single arbitration procedure is still needed. The thesis identifies the main legal barriers to an arbitration procedure as being: bringing the parties to arbitrate, the arbitrability of the dispute, the identification of applicable law and the need for preliminary injunctions. It is concluded that: the agreement to arbitrate should be facilitated by the authorities so that it is appealing to the parties; the arbitrability can be resolved by limiting the effect of the judgment to the parties; a flexible approach can be adopted to applicable law through the application by the arbitrator of ‘choice of law’ rules; and, even when a preliminary injunction is needed, the parties may recur to arbitration. The thesis concludes that the primary benefit of a single arbitration procedure would be the creation of a single award enforceable at international level.
4
Gerber, Marcel. "Alternative dispute resolution in the BRICS nations: A comparative labour law perspective." University of the Western Cape, 2019. http://hdl.handle.net/11394/6996.
Full textAbstract:
Magister Legum - LLMAlternative dispute resolution refers to forms of dispute resolution, other than traditional and formal court based litigation. A notable benefit of alternative dispute resolution is that different processes are available for resolving a particular dispute in the most effective and efficient manner possible. Alternative dispute resolution includes but is not limited to arbitration, mediation, negotiation, conciliation and facilitation. The Constitution of the Republic of South Africa, 1996, lists human dignity, equality and the advancement of human rights and freedoms as the founding values of the Republic of South Africa. In terms of section 9(1) of the Constitution everyone is regarded as equal before the law and has the right to equal protection and benefit of the law in South Africa. Often it is however argued that traditional court based litigation hinders the full enjoyment of these rights by individuals. Consequently, alternative dispute resolution is attractive as an alternative to court based litigation as it is regarded as less expensive, more time effective and results in less conflict when it comes to resolving disputes in the most accessible, effective and efficient manner possible, in both developed and developing countries. The study will first focus on the pitfalls to traditional court based litigation in South Africa. The relevant legislation and processes which provide for alternative dispute resolution processes in South Africa, with specific focus on alternative dispute resolution in labour disputes, will be considered. Consideration will be given to the provision of alternative dispute resolution as contained in the Constitution, the Labour Relations Act 66 of 1995, the Rules for the Conduct of Proceedings before the CCMA of 2003 and the Arbitration Act 42 of 1965. The study will thereafter proceed to consider the use of alternative dispute resolution in labour disputes in Brazil, Russia, India and China, who, together with South Africa, are collectively referred to as BRICS. These five nations are considered the world’s leading emerging economies, with similar economic capabilities and demographics.
5
Ríos, Pizarro Carlos. "Three is a crowd? Some notes about Third Party Funding and its application in commercial arbitrations." IUS ET VERITAS, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/123422.
Full textAbstract:
In this article, the author introduces us to the institution of third party funding and its future application in arbitration litigation. Third party funding allows the litigant’s costs can be funded. Moreover, he points out the problems that the third party financing has, and the implementation of rules to deal with this situation. Finally, there is a tendency to expand the duty of disclosure of the parties whether a third party is funding them.En este artículo, el autor nos introduce a la institución del third party funding y su futura aplicación en los litigios arbitrales. El third party funding permite que los costos del litigante puedan ser financiados. Asimismo, señala los problemas que presenta el tercero financista, y la implementación de normas para afrontar esa situación. Finalmente, hay una tendencia de ampliar el deber de revelación de las partes sobre si se está siendo financiado por un tercero.
6
Irnsperger, Elena Maria. "Enforcement of the law in the People's Republic of China - with focus on international civil litigation and arbitration." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/12968.
Full textAbstract:
Includes bibliographical references.The main aspect of the paper is the investigation of the enforcement of law of foreign (and domestic) judgments as well as arbitral awards in People´s Republic of China (PRC). The focus lies on international civil litigation and arbitration. For this purpose it is essential to elaborate on the judicial structures and its impact on the enforcement of laws in the PRC. The court system as well as its size and performance, the prosecution system, the lawyer system, the jurisdiction and the arbitration system will be briefly discussed. Thereafter, the study focuses on the recognition and enforcement of civil judgements and arbitral awards in the PRC. The organization of the enforcement and its procedure, laws and regulations in general will be addressed before the enforcement of civil judgements and arbitral awards will be investigated in detail. The investigation of the enforcement of judgments in the people’s courts of China is separated in the enforcement of domestic judgments and foreign judgments. While examining the recognition and enforcement of arbitral awards it is important to consider the different categories of awards. In the following the challenges and obstacles facing the Chinese judicial system will be determined. The legal education, the lack of professionalism, local protectionism and the lack of judicial independence are just some of them. The progress China has made in the last decades will also be mentioned. Especially the judicial reforms from 1999 to 2014 and the efforts made to improve the enforcement of law. In addition the practical side will be determined, therefore, important or recent cases will be considered. The goal of the paper is to give an overview of the current social and economic environment of law enforcement and the measures which should be taken to improve the law enforcement in the PRC. Due to the lack of official statistics in regard of law enforcement in the PRC, the study is based on collected information from different sources.
7
Holovan, Yelyzaveta. "Ukrainian Investors’ Extraterritorial Crimean Quagmire : How to Overcome Jurisdictional Hurdles, Litigation Tactics, and Non-Voluntary Compliance Presented by Russia." Thesis, Uppsala universitet, Juridiska institutionen, 2021. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-444084.
Full textAbstract:
In 2014 Russia took control over Crimea, and significant numbers of Ukrainian investors pursued investment claims against Russia regarding investments in Crimea made prior to the annexation.Thus, a fundamental concern is the applicability of the Ukraine-Russia BIT to such investments.The BIT empowers Ukrainian investors to initiate arbitration for compensation if Russia expropriates any Ukrainian investments on its territory. In order for the investors’ capital in Crimea to qualify as “investments” under the BIT, the tribunals had to determine whether Crimea constituted a part of the Russian “territory”. Even though Crimea was de facto controlled byRussia, de jure the Russian sovereignty over it had been questioned. As of time of the Thesis at least 10 cases were initiated and in seven of which decisions on responsibility and compensation were made. Investors are now enforcing the decisions in different jurisdictions facing jurisdictional challenges from Russia`s side. In 2019, Russia changed the strategy deciding to actively participate in the cases, which may play a decisive role on further developments of the disputes. The paper will examine whether investment tribunals in the Crimean cases have authority to hear them and the award to stand during set-aside/enforcement proceedings from the perspective of different enforcing jurisdictions, as well various litigation tactics and strategies presented by Russia.
8
Lin, Ching-Lang. "Arbitration in administrative contracts : comparative law perspective." Thesis, Paris, Institut d'études politiques, 2014. http://www.theses.fr/2014IEPP0023/document.
Full textAbstract:
Il a été longuement discuté de savoir si le système d'arbitrage est applicable pour régler les litiges administratifs qui concernent certains contrats administratifs ou d’autres sans rapport avec le contrat administratif. Dans cette thèse, les trois questions spécifiques sont analysées tour à tour : (1) Est-il possible pour un arbitre ou un tribunal arbitral de trancher des questions relevant du droit administratif? (2) Y a-t-il, ou devrait-il y avoir, des limitations à l'autorité des arbitres et des tribunaux arbitraux? (3) Enfin, après la délivrance d'une sentence arbitrale, quel rôle devrait jouer l'État dans la phase de contrôle judiciaire? La première question concerne l'arbitrabilité et a été discutée dans la première partie (FIRST PART: ARBITRABILITY). La deuxième question a été discutée dans la deuxième partie (SECOND PART: PARTICULAR QUESTIONS OF ADMINISTRATIVE MATTERS IN ARBITRATION PROCEDURE). Enfin, sur la dernière question a fait l’objet d’une troisième partie (THIRD PART: JUDICIAL REVIEW AND EXECUTION OF ARBITRATION AWARD). Dans cette thèse, nous avons comparé les systèmes de quatre pays (Canada, Chine, France, Taïwan). En conclusion, nous pouvons donc conclure que l’évolution de la conception du contrat administratif implique de nombreux aspects, y compris les aspects juridiques, économiques, politiques et même culturels. Le développement de la fonction de contentieux administratif, comme ‘’subjectivement orienté" ou "objectivement orienté" aura une incidence sur l'acceptation de l'arbitrage en matière administrative. Dans l'ensemble, l'arbitrage sera plus acceptable dans les systèmes dont la fonction est plus ‘’subjectivement orientée" que dans ceux dont la fonction est "objectivement orientée"While arbitration has traditionally been considered as a means to resolve private disputes, its role in disputes involving administrative contracts is a crucial question in administrative law. In brief, the three specific questions are (1) Can arbitrators or arbitral tribunals decide issues involving administrative law? and (2) Is there, or should there be, any limitation on the authority of arbitrators or arbitral tribunals? (3) Moreover, after the issue of an arbitration award, what role should the State play in the judicial review phase? The first question, the issue of arbitrability, is discussed in part 1 (FIRST PART: ARBITRABILITY). The second question will be discussed in part2 (SECOND PART: PARTICULAR QUESTIONS OF ADMINISTRATIVE MATTERS IN ARBITRATION PROCEDURE). Finally, on the question of what happens after the arbitration award, we will discuss judicial review in part 3 (THIRD PART: JUDICIAL REVIEW AND EXECUTION OF ARBITRATION AWARD). We compare legal systems between the four countries: in France, in Canada, in China and in Taiwan. We believe that an administrative contract, at least in its function and conception, is gradually becoming different from a private contract. Innovation with respect to administrative contracts will also reflect the concentration and function of the administrative litigation systems in each country. In addition, the “objective” or “subjective” function of administrative litigation will also affect the degree of arbitrability, as well as arbitration procedures. Taken together, arbitration will be more acceptable in systems whose function is more “subjectively oriented” than in those whose function is “objectively oriented". Finally, “the arbitration of administrative matters” traditionally has been an important question in administrative and arbitration law. In the future, we will continue to see it shine in the doctrine and jurisprudence of both the administrative and arbitration law fields
9
Cortesi, Giulio Alvaro. "Les émanations de l'Etat à vocation économique dans l'arbitrage des investissements et dans le contentieux de l'O.M.C." Thesis, Paris 1, 2018. http://www.theses.fr/2018PA01D055/document.
Full textAbstract:
L'idée de cette thèse sur le droit international des investissements concernant les entreprises d'État trouve son origine dans l'impressionnant développement économique de ces dix dernières années. D'une part, ce dernier donne une pertinence considérable à ce thème compte tenu de son actualité. D'autre part, il existe un intérêt considérable pour les problèmes juridiques laissés en suspens par ces entités. Cette thèse commence par un chapitre préliminaire dans lequel la forme juridique de ces institutions est analysée, à la fois avec une évaluation empirique et du point de vue du droit national et international applicable à ces sujets. L'analyse empirique approfondie qui n'a pas encore été réalisée dans les recueils de contributions examinés s'est révélée fondamentale, car certaines des questions juridiques concernant les entreprises d'État ne pourraient vraiment pas être abordées sans une telle approche. Le corps plus juridique de la thèse, consacré uniquement à l'analyse juridique, est composé de trois parties et présente deux principaux pôles d'intérêt : le premier est lié à la compréhension des implications juridiques de ces entités et le second, plus large, vise à comprendre le traitement qui a été réservé à ces organes dans les différends examinés. Ce traitement peut nous renseigner au niveau systémique sur le droit international des investissements, qui a également nécessité une comparaison ciblée avec l'arbitrage commercial et avec le droit commercial internationalThe idea of a thesis on state enterprises in international investment law finds its roots in their impressive economic development during the last decade, which, on one hand, gives considerable relevance to this theme given its inherent actuality and, on the other hand, there is a considerable interest in the juridical problems that these entities leave open. The thesis consists of a preliminary chapter, were the legal form of these institutions has been analyzed, from both an empirical assessment and the standpoint of national and international law applicable to these subjects. The empirical, in-depth analysis, not yet reached in the collections of examined contributions, turned up as fundamental, because some of the legal issues concerning state enterprises cannot really be tackled without such an approach. The more juridical body of the thesis, devoted only to legal analysis is composed of three parts and has two main poles of interest: the first linked to the understanding of the legal implications of these entities and a second, and, wider one, aimed at understanding what the treatment of these bodies, occurred in the dispute cases examined, can tell us at a systemic level about international investment law, which has required also a targeted comparison with commercial arbitration and international trade law
10
Tleiji, Fatima. "Le cadre juridique du cyber arbitrage dans le commerce international." Thesis, Paris 1, 2017. http://www.theses.fr/2017PA01D047.
Full textAbstract:
Cette thèse est une étude comparative entre la loi française et la loi égyptienne ; elle porte sur le cadre juridique du cyber arbitrage dans le commerce international, ces termes signifiant la dématérialisation des procédures de l’arbitrage lequel représente un moyen alternatif pour régler les litiges commerciaux. La question est de savoir dans quelle mesure les règles de l'arbitrage traditionnel sont aptes à régir l'arbitrage dématérialisé et s’il faut créer pour ce dernier des règles juridiques spécifiques. La réponse à cette problématique s’articule autour de la possibilité pour toutes les règles de la législation d’adopter les nouvelles technologies. Notons que l’arbitrage dématérialisé est soumis à la même règle traditionnelle régie par la théorie générale des contrats, selon le principe de la volonté des parties, mais cet arbitrage se déroule hors la présence de ces dernières car par le biais de moyens électroniques. La procédure arbitrale aura lieu à distance, cependant, si au plan technique l'arbitrage en ligne se pratique aisément, il n’en va pas de même au plan juridique. En d’autres termes, l'arbitrage classique comprend pléthore de conditions impératives tant sur le fonds que sur la forme, conditions que l'arbitrage en ligne, en vertu de sa nature, ne réussit pas à satisfaire en totalité. Les deux lois comparées sont globalement convergentes et concordent avec les principes internationaux. Après une longue période de franche hostilité on note, dans les années quatre-vingts de la part des pays arabes, des changements dans leur attitude à l’égard de l’arbitrage commercial international. Toutefois, la loi française dépasse la loi égyptienne en matière électroniqueThis thesis is a comparative study between French law and Egyptian law; it concerns The legal framework for cyber arbitration in international trade, these terms mean paperless arbitration procedures which represents an alternative way to resolve trade disputes. The question is to what extent the rules of traditional arbitration are able to govern dematerialized arbitration and whether to create it for specific legal rules. The answer to this problem is based on the ability of all the rules of law to adopt new technologies. Note that the dematerialized arbitration is subject to the same traditional rule governed by the general theory of contract, on the basis of the will of the parties, but the arbitration shall be conducted without the presence of the latter because through electronic means. The arbitration proceedings will be held remotely, however, if technically online arbitration easily practice it does not hold true in legal terms. In other words, the classic arbitration includes plethora of mandatory conditions on both the funds and the form, terms as online arbitration, pursuant to its nature, does not satisfy in full. Both laws are compared globally convergent and consistent with international principles. After a long period of open hostility there are, in the eighty years from Arab countries, changes in their attitude to international commercial arbitration. However, French law exceeds the Egyptian law on electronic material
Books on the topic "Litigation and arbitration"
1
Institute, Pennsylvania Bar. Arbitration litigation. [Mechanicsburg, Pa.]: Pennsylvania Bar Institute, 2010.
Find full text
2
F, Lowenfeld Andreas. International litigation and arbitration. 2nd ed. St. Paul, Minn: West Group, 2002.
Find full text
3
International litigation and arbitration. St. Paul, Minn: West Pub. Co., 1993.
Find full text
4
Nemeth, Charles P. Litigation, pleadings, and arbitration. Cincinnati: Anderson Pub. Co., 1990.
Find full text
5
Stirnimann, Franz X., Jorge Alberto Huerta-Goldman, and Antoine Romanetti. WTO litigation, investment arbitration, and commercial arbitration. Alphen aan den Rijn, The Netherlands: Kluwer Law International, 2013.
Find full text
6
Fellas, John. International business litigation & arbitration, 2000. New York: Practising Law Institute, 2000.
Find full text
7
Fellas, John. International commercial litigation. New York: Practising Law Institute, 1999.
Find full text
8
V, Eijsvoogel Peter, ed. Litigation in the Netherlands: Civil procedure, arbitration, and administrative litigation. Austin: Wolters Kluwer Law & Business, 2009.
Find full text
9
Weintraub, Russell J. International litigation and arbitration: Practice and planning. Durham, N.C: Carolina Academic Press, 1994.
Find full text
10
Marquis, Mel, and Roberto Cisotta. Litigation and arbitration in EU competition law. Cheltenham, UK: Edward Elgar, 2015.
Find full textBook chapters on the topic "Litigation and arbitration"
1
Strong, S. I. "International Litigation – Arbitration." In Encyclopedia of Law and Economics, 1–10. New York, NY: Springer New York, 2021. http://dx.doi.org/10.1007/978-1-4614-7883-6_70-2.
Full text
2
Strong, S. I. "International Litigation and Arbitration." In Encyclopedia of Law and Economics, 1185–94. New York, NY: Springer New York, 2019. http://dx.doi.org/10.1007/978-1-4614-7753-2_70.
Full text
3
Strong, S. I. "International Litigation & Arbitration." In Encyclopedia of Law and Economics, 1–11. New York, NY: Springer New York, 2014. http://dx.doi.org/10.1007/978-1-4614-7883-6_70-1.
Full text
4
Füeg, Rainer. "Hauptprozess Litigation & Arbitration Management." In Praxishandbuch Legal Operations Management, 717–27. Berlin, Heidelberg: Springer Berlin Heidelberg, 2017. http://dx.doi.org/10.1007/978-3-662-50506-9_50.
Full text
5
Constable, Adam, Lucy Garrett, and Calum Lamont. "The TCC and arbitration." In Litigation in the Technology and Construction Court, 141–47. New York: Routledge, 2018. | Series: Construction practice series: Informa Law from Routledge, 2018. http://dx.doi.org/10.4324/9781315629421-11.
Full text
6
Fagetan, Ana Maria. "Litigation and Arbitration Regarding Hedge Funds." In The Regulation of Hedge Funds, 399–477. Cham: Springer International Publishing, 2020. http://dx.doi.org/10.1007/978-3-030-63706-4_7.
Full text
7
Gaunt, Ian. "Recent Chinese Experience in London Maritime Arbitration and Litigation." In Commercial and Maritime Law in China and Europe, 165–80. London: Informa Law from Routledge, 2022. http://dx.doi.org/10.4324/9781003160298-14.
Full text
8
Petersen, Clement Salung. "The Public Policy-Implementing Role of Nordic Courts in Civil Dispute Resolution." In Ius Gentium: Comparative Perspectives on Law and Justice, 213–33. Cham: Springer International Publishing, 2021. http://dx.doi.org/10.1007/978-3-030-74851-7_12.
Full textAbstract:
AbstractThis chapter explores the role of Nordic courts in safeguarding certain public values and interests, whether substantial or procedural, in the three types of civil dispute resolution that can potentially lead to state enforcement, namely civil litigation, arbitration and mediation. First, it shows how Nordic courts in civil litigation may take on an’active role’ vis-à-vis the parties but that the legal contours of this role remain unclear and controversial. Secondly, it shows how current and proposed statutory frameworks governing arbitration and mediation give national courts an important role in safeguarding public values and interests which raises important questions in law concerning the role of courts as gatekeepers of access to court and state enforcement for private actors. The chapter concludes with a discussion of the need for developing a clearer and more coherent approach to defining this public policy-implementing role of courts across all three types of civil dispute resolution. It is argued that such a coherent approach is needed and that it will be valuable to analyse the public policy-implementing role of courts in a Nordic context, since the Nordic countries generally share many of these relevant public values and interests.
9
Mark, Brealey, and George Kyla. "21 Arbitration." In Competition Litigation. Oxford University Press, 2019. http://dx.doi.org/10.1093/law-ocl/9780199665075.003.0021.
Full textAbstract:
This chapter examines the role of arbitration in competition law as well as its advantages and disadvantages when it comes to resolving disputes compared to other approaches. It provides examples of competition law issues resolved through arbitration and how arbitration has been used by authorities such as the European Commission to police and enforce commitments. It also discusses the jurisdictional competence of arbitrators in relation to competition law disputes and issues, such as challenging the extent and validity of an arbitration clause. The chapter proceeds by analysing the arbitrability of competition law issues, the construction and use of arbitration clauses in competition cases, the doctrine of ‘separability’ and the illegality of agreement containing arbitration clause, and the anti-competitive effect of an arbitration agreement. Finally, it describes the practicalities of resolving competition law issues through arbitration, along with the rules governing appeals and enforcement of arbitral awards.
10
Leslie, Jonathan, and John Kingston. "Arbitration." In Practical Guide to Litigation, 211–24. Informa Law from Routledge, 2020. http://dx.doi.org/10.4324/9781003123033-31.
Full textConference papers on the topic "Litigation and arbitration"
1
Wiradisuria, Errawan R., Dwi Heri Susatya, and Andjar Bhawono. "Arbitration as an Alternative to Non-Litigation Settlement in Medical Cases." In International Conference on Law Reform (INCLAR 2019). Paris, France: Atlantis Press, 2020. http://dx.doi.org/10.2991/aebmr.k.200226.024.
Full text
2
Hapuarachchi, H. N. M., and K. Udayangani. "Suitability of alternative dispute resolution methods based on risk factors to the Sri Lankan construction industry." In Independence and interdependence of sustainable spaces. Faculty of Architecture Research Unit, 2022. http://dx.doi.org/10.31705/faru.2022.11.
Full textAbstract:
Disputes in construction projects always used to resolve in litigation, where nowadays parties use new innovative dispute resolution methods known as Alternative Dispute Resolution(ADR)s. Many ADR-related studies in the local context are relevant to its applicability, enforceability, and effectiveness, whereas less studies exist on the choice of ADR method(s). Further, the literature proves risk in construction projects can be used as a criterion to select ADR methods, where studies are very less. Followingly, this study focused on developing a matrix based on risk factors in the construction industry for the choice of ADR method(s) under mixed research approach. The literature survey explored ADR method(s) and risk factors. Expert interviews were executed with five experts to filter the risk factors under the choice of ADR method(s) where 10 out of 15 risk factors were chosen as applicable for the study. Then, a structured questionnaire was designed with expert interview findings and distributed among 40 experts, where 34 responses were received. The responses were analyzed through Relative Importance Index technique. Thus, ADR methods were ranked against risk factors based on RII values and developed the matrix. The result proves negotiation is the best ADR method where conciliation, mediation, dispute adjudication and arbitration are suitable respectively.
3
Worster, Shawn, and Andrew Brydges. "Making Lemonade From Lemons: Lessons Learned in Reducing the Economic and Environmental Impact and Negotiating the Post-2005 Service Agreements on Behalf of the 23 NESWC Communities." In 12th Annual North American Waste-to-Energy Conference. ASMEDC, 2004. http://dx.doi.org/10.1115/nawtec12-2209.
Full textAbstract:
The twenty-three communities that comprise the North East Solid Waste Committee have labored under what may well be the worst municipal solid waste service agreement in the country. In FY 2004, the disposal fee is $140 per ton. Over the past eighteen years, the communities have paid more for disposal, as much as two to three times what the neighboring communities have paid. The NESWC Board of Directors has, over the course of the past ten years, implemented a multifaceted program to reduce the environmental and economic burden associated with managing the municipal solid wastes generated in the 23 member communities. The program has included a series of innovative approaches to obtaining negotiating leverage and support from diverse stakeholders to reduce the cost and implementing innovative programs to help reduce the amount and toxicity of waste requiring disposal. What makes this particularly significant is that it was done on a regional basis, involved interaction with a broad, diverse group of stakeholders at the local, state and federal level and required the use of a wide array of change inducing tools, including arbitration and litigation, to achieve the results. Most recently, the communities and the vendor, Wheelabrator North Andover, completed negotiations regarding service post termination of the existing Service Agreement in September, 2005. This paper updates key lessons learned over the past decade.