Journal articles on the topic 'Litigation and arbitration'
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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.
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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.
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Leake, Timothy. "Arbitration Waiver and Prejudice." Michigan Law Review, no. 119.2 (2020): 397. http://dx.doi.org/10.36644/mlr.119.2.arbitration.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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Boshoff, L. L. "Saudi Arabia: Arbitration vs Litigation." Arab Law Quarterly 1, no. 3 (1985): 299–311. http://dx.doi.org/10.1163/157302585x00518.
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Boshoff, L. L. "Saudi Arabia: Arbitration vs. Litigation." Arab Law Quarterly 1, no. 3 (May 1986): 299. http://dx.doi.org/10.2307/3381751.
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Louise Livingstone, Mia. "Party Autonomy in International Commercial Arbitration: Popular Fallacy or Proven Fact?" Journal of International Arbitration 25, Issue 5 (October 1, 2008): 529–35. http://dx.doi.org/10.54648/joia2008041.
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Parties to cross–border disputes are developing a preference for international commercial arbitration as a desired alternative to litigation in the national courts. This trend owes much to the popular pro–arbitration belief that arbitrating parties are granted the autonomy to control their own decision–making process. But is this true? This article explores whether party autonomy is achieved in practice in international commercial arbitration or whether the parties still find themselves burdened with quasilitigious constraints. Upon considering the experience of international parties from an Australian and English perspective, this article finds that the restrictions imposed on parties to international commercial arbitration have developed so as to protect the freedoms they can exercise in the process.
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Rotunda, R. D. "Cautionary Lessons from American Securities Arbitration: Litigation v. Arbitration." Arbitration International 5, no. 2 (June 1, 1989): 199–204. http://dx.doi.org/10.1093/arbitration/5.2.199.
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Guandalini, Bruno. "Arbitragem de ofertas finais no Brasil." Revista Brasileira de Arbitragem 12, Issue 48 (December 1, 2015): 7–21. http://dx.doi.org/10.54648/rba2015062.
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ABSTRACT: Final offer Arbitration is an arbitration model slightly different from conventional arbitration. As it was firstly used to resolve conflicts in the American Baseball League, it became known as Baseball Arbitration. Despite its widespread use in other countries, in Brazil it is quite discrete as there are neither arbitration rules, nor case law regarding this model. This text aims, at first, to describe that the model has its interest: the economic incentives to reduce litigation and promote mutual agreement between the parties. And how do these incentives work? The arbitrator is limited to choose between two offers so parties tend to offer the solution closest to the reality. Therefore, the second question that arises in the text is the model’s compliance with the Brazilian legal system. As the text explains, this interesting model might be compatible, but few adjustments are necessary.
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Carreteiro, Mateus Aimoré. "Appellate Arbitral Rules in International Commercial Arbitration." Journal of International Arbitration 33, Issue 2 (April 1, 2016): 185–216. http://dx.doi.org/10.54648/joia2016010.
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Arbitral proceedings are praised for the finality of their arbitral awards. One cannot ignore, however, that parties to complex and high-stakes disputes may be concerned about potential errors. In certain disputes, therefore, an internal appellate tribunal may be an interesting option for effective review of awards. After reviewing the role of appeals in litigation, this article analyzes the reasons in favor of appeals in international commercial arbitration and reviews how arbitral institutions have structured appellate arbitral rules and other potential issues that may arise. In conclusion, this article suggests that appeals, in the context of certain international commercial arbitrations, may improve the arbitration system and be crucial instruments to protect parties against erroneous decisions and to safeguard the integrity of the arbitration process.
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Scherer, Matthias. "New Rules for Litigation and Domestic Arbitration in Switzerland." Revista Brasileira de Arbitragem 8, Issue 29 (March 1, 2011): 121–32. http://dx.doi.org/10.54648/rba2011006.
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ABSTRACT: Switzerland is one of the world's leading places for international arbitration proceedings. Swiss arbitration law is based on a dual system. International arbitration proceedings are governed by the Swiss Federal Act on Private International Law ("PIL Act"). Until recently, domestic arbitration proceedings were governed by a treaty among the Swiss cantons-the Intercantonal Concordat on Arbitration ("Concordat"). On 1 January 2011, the unified Swiss Federal Code of Civil Procedure ("SCCP") entered into force. This is the most important development in the Swiss legal order since the unification of the civil, commercial and criminal law at the beginning of the 20th century. The SCCP abolishes and replaces the 26 cantonal codes of civil procedure as well as the Concordat on domestic arbitration which, while modern when it was established in 1969, no longer met the expectations of users in the 21st century. The present paper summarizes some of the key features of the SCCP in the field of arbitration.
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Elmejresi, Jamila Ibrahim, Muneer Ali Abdul Rab, and Abdul Samat Musa. "مدى سلطة المحكّم في البتّ في اختصاصه في التّشريع الليبي." Malaysian Journal of Syariah and Law 7, no. 1 (May 29, 2019): 85–96. http://dx.doi.org/10.33102/mjsl.v7i1.131.
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The principle of competence in jurisdiction is an important basis in commercial arbitration for its importance in reducing the time of litigation. The trust of the litigants in the arbitrator does not stop at the subject matter of the dispute but extends to all its preliminary decisions before the judgment in the case. This principle is explicitly adopted in the majority of arbitration centres. However, Libyan jurisprudence does not adopt this principle, and it is left vague under the provisions of article 757 of the Code of Plea on Matters outside the Jurisdiction of the Arbitrators, which could result in a contradiction in the arbitration decisions. Thus, this paper deals with the limits of the authority of the arbitrator in enforcing his jurisdiction under Libyan legislation by relying on the inductive method and analytical deductive approach. This research concludes that the principle of jurisdiction is one of the most important principles of international arbitration. However, Libyan legislators have not properly addressed the issue on the invalidity of the arbitration clause in a true contract due to the ambiguity of Article 757 of the Libyan Code of Procedure on matters beyond the jurisdiction of the arbitrators. There is thus an overlap between the judiciary and arbitration in specifying the jurisdiction of the arbitrator in the texts of the draft arbitration law
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Hartman, Francis T., and George F. Jergeas. "A model for proactive mediation of construction disputes." Canadian Journal of Civil Engineering 22, no. 1 (February 1, 1995): 15–22. http://dx.doi.org/10.1139/l95-002.
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Alternative dispute resolution methods remain an area of interest and study because of the continued increase in the incidence of disputes, be they claims or litigation. Practice in the industry tends to stimulate litigation if negotiation of claims is unsuccessful. At variance with this is the declared preference of construction industry practitioners for mediation over arbitration and for arbitration over litigation. Mediation has had a high success rate when used in construction dispute resolution. The cost of mediation is significantly lower than litigation or arbitration. The probability of the parties to the dispute being able to work together effectively after the dispute has been resolved is higher, and the dispute can be resolved more quickly than by arbitration or litigation. This paper presents the findings of a study undertaken to identify a better process for construction contracting. An essential part of the new process is the use of proactive mediation. Proactive mediation is the use of a mediator prior to a dispute arising to help identify and address potential problems before they become difficult or unsolvable issues. The proposed methodology has been tested through a process which obtained the input of over 60 senior industry practitioners. Key words: mediation, construction management, contracts, claims, cost reduction, alternate dispute resolution, risk management.
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Garnett, Richard. "NATIONAL COURT INTERVENTION IN ARBITRATION AS AN INVESTMENT TREATY CLAIM." International and Comparative Law Quarterly 60, no. 2 (April 2011): 485–98. http://dx.doi.org/10.1017/s0020589311000030.
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International commercial arbitration has long been a popular method for resolving cross-border business disputes. The opportunity for parties to choose their adjudicators and the dispute resolution procedure, the scope for privacy and the greater capacity for enforcement of awards compared to court judgments are all important reasons that parties prefer international arbitration over litigation. Reinforcing this trend in favour of international commercial arbitration has been a general consensus among national courts and legislatures that support, rather than interference, should be provided to the arbitral process. Such a philosophy is apparent, for example, in the requirements in the widely adopted New York Convention for States to recognize and enforce both foreign arbitration agreements and awards, and in international instruments such as the 1985 UNCITRAL Model Law on International Commercial Arbitration, which authorize national courts to assist, rather than intervene, in the conduct of arbitrations within their borders. Moreover, international commercial arbitration has proven to be sufficiently flexible as a dispute resolution method to be used both in disputes between private parties, and between private and State entities.
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Devkota, Sanad. "Viewpoint of the Supreme Court of Nepal on the Arbitration Process in the Light of Party Autonomy." Tribhuvan University Journal 35, no. 2 (December 31, 2020): 47–58. http://dx.doi.org/10.3126/tuj.v35i2.36189.
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Arbitration is a contract-based form of binding dispute resolution. In other words, a party’s right to refer a dispute to arbitration depends on the existence of an agreement between them and the other parties to the dispute that the dispute may be referred to arbitration. Arbitration is a private process where disputing parties agree that one or several individuals can make a decision about the dispute after receiving evidence and hearing arguments. The arbitration process is similar to a trial in that the parties make opening statements and present evidence to the arbitrator. Conflicts have existed in all cultures, religions and societies since time immemorial, as long as human have walked the earth. Human society is a repertoire where differences arise and persist as salient features, but this is also a platform where varieties of disputes find management in the form of resolution to energize the society. As conflicts are an integral part of human interaction, one must learn to deal with them tactfully, conventionally, disputes – commercial or otherwise were resolved by litigation but due to delays, costs, publicity and technicality associated with litigation, alternative dispute resolution (ADR) processes evolved. Various means of ADR or out of court settlement of disputes such as negotiation, conciliation and arbitration have come into practice. In the modern era, the business activities are increasing day by day. Along with the business activities, its complexities, differences, and disputes are also increasing day by day. The traditional method of settling disputes is the litigation process in the court of law. From the perspective of concerned parties, settlement of these disputes as quick as possible is desired. But because of the lengthily procedure and case load settlement through court is not possible. For this reason, parties were looking for the alternative process where both the parties can trust impartial person who will solve their disputes within short period of time.
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Tena-Tamayo, Carlos, and Julio Sotelo. "Malpractice in Mexico: arbitration not litigation." BMJ 331, no. 7514 (August 18, 2005): 448–51. http://dx.doi.org/10.1136/bmj.331.7514.448.
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Gotti, Maurizio. "The influence of legal tradition on Italian arbitration discourse." Semiotica 2017, no. 216 (May 24, 2017): 317–37. http://dx.doi.org/10.1515/sem-2017-0037.
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AbstractIn the last few decades, arbitration has been increasingly adopted in trade and commerce to resolve conflicts. As this method of settling commercial disputes is commonly considered an efficient, economical and effective alternative to litigation, the language used in arbitration documents is usually deemed to differ from that of litigation texts. However, in recent years there has been a narrowing between the two practices, as litigation processes and procedures have increasingly been seen to influence arbitration practices. In view of these considerations, the paper investigates the nature and the extent of the “colonization” of commercial arbitration discourse by litigation language in the Italian context, and explores the motivations for such an interdiscursive process. To better understand how and to what extent language forms/functions correlate to the “colonization” of arbitration discourse, the paper focuses on the lexico-semantic elements of the Italian arbitration texts examined here and on the linguistic expression of their rhetorical-pragmatic strategies. In particular, it examines whether key linguistic features of Italian legal language are also present in the texts taken into consideration. The analysis is based on the recording of recent Italian arbitral proceedings as well as awards of commercial arbitration cases, and also examines documents used in Online Dispute Resolution, a field which is supposed to be more user-friendly and accessible to laymen wishing for clear resolutions to resolve their disputes. Relying on the analysis of the texts, the chapter shows the presence of the main lexical, syntactic and textual patterns typical of Italian legal language. The presence of these features can be explained not only by the legal background of many of the arbitrators but also by a process of standardization which seems to condition also the non-legal experts working in this field.
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Kerr, L. J. "Arbitration v. Litigation / The Macao Sardine Case." Arbitration International 3, no. 1 (January 1, 1987): 79–86. http://dx.doi.org/10.1093/arbitration/3.1.79.
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Reams, Lester C. "Arbitration vs Litigation – Has the Business Mindset Used the Mandatory Arbitration Clause/Agreement to Compromise the Right to Trial to Resolve Business Disputes in the United States." Bulletin of Taras Shevchenko National University of Kyiv. Public Administration 11, no. 1 (2019): 23–35. http://dx.doi.org/10.17721/2616-9193.2019/11-3/7.
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Purpose. The purpose of the article is to reveal whether the business mindset has used the mandatory arbitration clauses/agreements to compromise the US consumer’s right to a trial to resolve business disputes in the United States. Methodology. The results of the study were obtained by the following methods: systematic and comparative methods – to determine the essence and peculiarities of historical business behavior, business ethics and mindset; time, cost and mindset factors in arbitration vs litigation from the businesses’ and consumers’ perspectives; analysis and synthesis methods – to reveal the complex historic factors and interests that pre-determined the formation and application of arbitration. Findings. In accordance with the study objectives, the author: 1) identified that business mindset was focused on making a profit and doing whatever it takes to make that profit and achieve the ambition of the business owner(s); 2) observed that companies’ bend towards arbitration in the US developed as a way to avoid profit loss and avoid obstacles that would impede business for achieving it ambition due to high cost and duration of litigation; 3) revealed that there was concerted effort between business and pro-business supporters to favor the use of mandatory arbitration, which waived the right to trial; 4) discovered that actions to ban mandatory arbitration have been pre-empted by the Federal Arbitration Act; 5) unveiled that during COVID 19, while jury trials are on hold, proceedings whether litigation or arbitration are still taking place remotely; 6) concluded that the business mindset used the mandatory arbitration clause/agreement to compromise the right to trial to resolve business disputes in the United States. Originality. The author offers original insights and interpretation of historic factors leading to the development and transformation of arbitration, as an alternative to litigation, system and procedures. The article contains original analysis of the newest events and practical outcomes of the status-quo of the US Legal System. Practical value. In the light of a growing consumer backlash as result of the abuses occurring in the arbitration process, the article may serve as a methodological and theoretical basis for further development of American business legislation in the part of dispute resolution. The United States Elections of 2020 will be a determinant of the fate of mandatory arbitration and the right to trial.
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Nufaris Elisa. "The Resolution of International Trade Disputes through Arbitration." Britain International of Humanities and Social Sciences (BIoHS) Journal 2, no. 1 (February 29, 2020): 296–301. http://dx.doi.org/10.33258/biohs.v2i1.191.
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If an international trade dispute occurs, so that the ways of resolution can be reached through non-litigation (alternative litigation) or Alternative Dispute Resolution (ADR). The facilities classified as ADR other than Arbitration facilities as contained in Article 6 of Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution which includes facilities including Meditation facilities, Negotiation facilities, Consolidation facilities, and other facilities. Based on the Arbitration Law it provides an opportunity to resolve trade disputes through the Arbitration institution and it is very appropriate if this institution has a very important role in resolving disputes that occur in the world of international trade. The scope of disputes which can be tried in a trial of the International Commercial Arbitration institution must be related to the issue of trade, finance and general trading (commerce), while those relating to other matters have nothing to do at all.
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Wulandari, Mona, and Saifullah Basri. "Analisis Hukum Penyelesaian Sengketa Kepailitan Syariah di indonesia." Wajah Hukum 6, no. 2 (October 14, 2022): 441. http://dx.doi.org/10.33087/wjh.v6i2.1081.
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After the issuance of the Constitutional Court Decision Number 093/PUU-X/2012, the quo vadis regarding the dualism of the authority to settle sharia economic disputes has ended. The Religious Courts are legally constitutional as the only institution authorized to resolve sharia economic disputes through litigation. However, this authority is not fully implemented, there are still other sharia economic disputes whose resolution is decided by the Commercial Court within the scope of the General Courts, namely bankruptcy disputes and PKPU (Debt Payment Obligations Suspension) in Islamic financial institutions. So after the decision of the Constitutional Court Number 93/PUU-X/2012, the litigation resolution of sharia banking disputes is handled by the Religious Courts, while non-litigation is handled by arbitration and other alternative dispute resolutions. Arbitration in this case is the National Sharia Arbitration Board (BASYARNAS) while other alternative dispute resolutions are resolved through dispute resolution agreements based on good faith.
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Grannum, Sandra D., and Justin Ginter. "Nuts and bolts: securities arbitration." Journal of Investment Compliance 18, no. 4 (November 6, 2017): 1–7. http://dx.doi.org/10.1108/joic-08-2017-0054.
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Purpose To address the nuts and bolts of securities arbitration in the FINRA forum. Design/methodology/approach Provides introduction and background, defines key terms, and suggests ways to approach the major steps in the securities arbitration process, including witness interviews, document reviews, resolution of joint representation and conflict issues, determining the scope of attorney-client privilege, filing or reviewing the Statement of Claim, making the initial pleading, advocating for the most favorable arbitrator selection, possible employment of experts, and cross-examination. Findings To prepare thoroughly for a securities arbitration case and to plan a strategy for the key step of cross-examination, a lawyer needs to know the broad financial market context; the technical details of the relevant financial products, portfolio management strategies and transactions; the points of view of both the client and the opposing party; the details of all the documents introduced; and the background of the client’s and the adversary’s witnesses. Originality/value Expert guidance from experienced bank and broker-dealer litigation, arbitration and mediation lawyers.
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Martins, António, Sandrina Correia, and Daniel Taborda. "Group Transactions, Transfer Pricing and Litigation: Evidence from Portugal." Intertax 48, Issue 11 (October 1, 2020): 998–1011. http://dx.doi.org/10.54648/taxi2020101.
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In Portugal, in the wake of the introduction of tax arbitration in 2011, courts have ruled in several cases involving transfer pricing (TP) judicial conflicts. The research questions that this article addresses are: What are the core issues in TP litigation in Portugal? Do they follow international trends? What is the predominant outcome of arbitration rulings, and why do tax authorities experience defeat so many TP cases? Based on the total (thirty-two) TP arbitration cases decided in Portugal from 2012 to 2017, the authors find that tax administrations (TA) were successful in only three cases. Courts also found that tax audit reports often misused the comparability concept, and the methods that were used were also often disallowed by arbitrators. Therefore, TAs should proceed with caution in audits and seek robust foundations to TP adjustments. Multinational groups must also carefully substantiate their related party transactions in order to minimize audit risk and compliance costs of taxation. Group transactions, transfer pricing, tax arbitration, Portugal.
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Kurasha, Primrose E. R. "South Africa's jurisdictional challenge with the under-development of cross-border commercial litigation: Litigation v Arbitration." De Jure 55, no. 1 (April 20, 2022): 1–27. http://dx.doi.org/10.17159/2225-7160/2022/v55a1.
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Private international law is a globally established field of law however, its pre-eminence in Africa is insignificant and this has been as a result of its relevance, which according to many scholars is arguable. It follows logically therefore, that it is underdeveloped in Africa, and as this article posits, specifically in South Africa. This article advocates for the development of South African private international law by endorsing South Africa as a viable neutral jurisdiction venue for cross-border commercial disputes, in future. According to this article, this is to be achieved by the recognition of neutral jurisdiction clauses in South African courts. This can only be done by developing an effective and just system of cross-border/trans-national litigation. The proposed sound cross-border jurisdictional rules will supplement the newly established transnational arbitration regime. In order to achieve this, this research reflects an integrated comparative approach by establishing comparative perspectives mainly from the UK, USA, Brazil, Kosovo and South Africa.1 Based on its constitutional values of inalienable human rights and access to courts (justice), South Africa stands to gain immensely from incoming commercial arbitration and commercial litigation as forms of dispute resolution. This will establish the country as the preferred venue for arbitration and litigation on the African continent and beyond.
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POWELL, RICHARD, and AZIRAH HASHIM. "Language disadvantage in Malaysian litigation and arbitration." World Englishes 30, no. 1 (February 20, 2011): 92–105. http://dx.doi.org/10.1111/j.1467-971x.2010.01689.x.
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Gardner, Winston W. “Bud.” "Litigation or Arbitration: View from the Trenches." Journal of Legal Affairs and Dispute Resolution in Engineering and Construction 3, no. 2 (May 2011): 55–57. http://dx.doi.org/10.1061/(asce)la.1943-4170.0000070.
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Baxter, Gregory W. "Arbitration or Litigation for Employment Civil Rights?" Journal of Individual Employment Rights 2, no. 1 (January 1, 1993): 19–27. http://dx.doi.org/10.2190/4h9k-jkv3-6qtb-9vtr.
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Denis, Martin K. "Binding arbitration-an attractive alternative to litigation." Employment Relations Today 14, no. 3 (September 1987): 269–78. http://dx.doi.org/10.1002/ert.3910140309.
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Budniak-Rogala, Aleksandra. "Wyłączenie biegłego w postępowaniu arbitrażowym." Przegląd Prawa i Administracji 116 (December 20, 2019): 9–28. http://dx.doi.org/10.19195/0137-1134.116.1.
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DISQUALIFICATION OF AN EXPERT WITNESS IN AN ARBITRATION PROCEDUREThe legislator has not provided any specific regulations stipulating the legal basis of a disqualification of an expert witness in an arbitration procedure in the Polish Civil Procedure Code. As a result, it is clear whether it is possible and, if so, under what conditions it could take place. The proceedings before the arbitration court are entirely distinct from litigation, and, therefore, there are different rules concerning the evidentiary procedure, especially obtaining an expert opinion. During the arbitration procedure, as opposed to litigation, there are two modes of obtaining said evidence. As a general rule, there is a possibility of appointing an expert witness by the arbitration court; however, it is more common for the parties to appoint an arbitration expert witness. This justifies the different approach to the matter of disqualification of an expert witness — on the basis of the source of their appointment.Regarding the event of appointing an expert witness by the arbitration court, it is important to note that pursuant to the provision of Article 1184 § 2 sentence 2 of the Civil Procedure Code, the arbitration court is not bound by the provisions regulating the litigation. Therefore, in the arbitration procedure on the grounds of the rule stipulated by the provision of Article 13 § 2 of the Civil Procedure Code there is no legal basis to apply the provisions of Article 281 of the Civil Procedure Code regarding the disqualification of an expert witness. However, it appears that in the analyzed matter it is possible to resort to the IBA Guidelines on conflict of interests in international commercial arbitration. The expert witness appointed by the party shall be attributed the status of a witness with special knowledge expert witness. With this approach there is no need to resort to disqualification of an expert witness — the evidence in question shall be evaluated based on rules on witness testimony.
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Bizikova, Lucia. "On Route to Climate Justice: The Greta Effect on International Commercial Arbitration." Journal of International Arbitration 39, Issue 1 (February 1, 2022): 79–116. http://dx.doi.org/10.54648/joia2022004.
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Climate change is the greatest global challenge that humankind has ever faced. It has changed the way in which communities, governments and businesses interact with each other, how they contract one with another and what legal disputes they face. National and international legal frameworks currently in place rarely provide the necessary mechanisms to resolve new kinds of disputes that have emerged and as a result, important gaps remain. International commercial arbitration is uniquely placed to respond to the transboundary nature of climate change. Its inherent flexibility, innovativeness, ability to deal with complex, cross-border issues and the possibility to choose a neutral adjudicator according to his/her expertise give commercial arbitration an important advantage over court litigation. However, some of its characteristics that are seen as welcome and desired in different contexts create important challenges for achieving climate justice. Therefore, innovation in this area will be necessary if commercial arbitration is to become an attractive option for resolving climate change-related disputes between businesses. The arbitration community should try to find constructive ways in which commercial arbitration can innovate itself so that it can complement other methods of dispute resolution traditionally used for climate change disputes. climate change, climate justice, ESG, international commercial arbitration, private finance, Paris Agreement, arbitration clause, expertise, transparency, Campaign for Greener Arbitrations, Chancery Lane Project, COP 26
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Aladwan, Zaid. "Letter of Credit Disputes from an Arbitration Perspective." Hasanuddin Law Review 6, no. 1 (April 16, 2020): 46. http://dx.doi.org/10.20956/halrev.v6i1.2136.
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In a recent study, it might not be possible to refer letter of credit fraud cases to arbitration instead of litigation. Alavi’s research suggested that there could be some obstacles, such as obtaining banks’ response and cooperation; the different and high standards of proof of fraud required; and the difficulty in obtaining an injunction. His study answered a question proposed by Blodgett and Mayer as to whether arbitration would ever take place in letter of credit disputes. This short research paper will answer this question, but from a different angle: whether arbitration will provide more appropriate judgments (award) than litigation regarding letter of credit disputes. This question arises from the writer’s observation that, in the past twenty years, different judgments have been issued for similar disputes.
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Ford, Cameron. "The Lost Precedents of Arbitration." Journal of International Arbitration 39, Issue 1 (February 1, 2022): 29–60. http://dx.doi.org/10.54648/joia2022002.
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Concerns have been expressed that commercial common law is not developing as it should due to disputes being resolved by confidential international commercial arbitration where the majority of awards are not published, and the resultant lack of precedents. This has contributed to questions of the legitimacy of international commercial arbitration and whether the rule of law is being undermined by the non-publication of awards or by the diversion of disputes to arbitration rather than litigation. This article examines the meaning of precedents in this context and the approximate number being ‘lost’ to international commercial arbitration compared to those made in authoritative common law superior courts of record. It suggests that the number of awards of precedential value (APV) is small compared to the volume of commercial judgments of those courts, and that the perceived loss of precedents does not support either publication of awards nor determination of disputes by courts rather than by tribunals. Precedent might instead be enhanced by a wider right of appeal from awards and by publication of the appeal decisions. precedent, precedential value, award publication, arbitration appeals, law development, settlement pressures, litigation vs arbitration, court reporting, Lindley principles, rule of law
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Strong, S. I. "Non-signatories’ Right to Appeal the Denial of a Stay of Litigation: Arthur Andersen L.L.P. v. Carlisle." Journal of International Arbitration 28, Issue 1 (February 1, 2011): 81–85. http://dx.doi.org/10.54648/joia2011006.
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In Arthur Andersen L.L.P. v. Carlisle, the U.S. Supreme Court held that any litigant—even a party who has not signed an underlying arbitration agreement—who seeks a stay of litigation pending arbitration under the U.S. Federal Arbitration Act (FAA) is entitled to an immediate appeal from a denial of that motion. This highly disturbing decision fails to engage with important principles of arbitration law and creates a clear, but ultimately problematic, rule for future litigants.
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Al-Shibli, Farouq Saber. "Litigation or Arbitration for Resolving Islamic Banking Disputes." Arab Law Quarterly 32, no. 4 (November 9, 2018): 413–38. http://dx.doi.org/10.1163/15730255-12324040.
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Abstract When investors decide to deal with Islamic banks, one of their main concerns is to ensure their businesses are protected in the case of disputes arising. For this reason, developing a good legal framework for resolving disputes is crucial to strengthen the position of Islamic banks in the global financial market. However, the unique nature of Islamic financial products and transactions requires that the disputes arising from this sector should not be dealt with by means of conventional laws and courts (litigation). It can be said that current practice, where Islamic banking and finance disputes are resolved by litigation with lopsided judgments is counterproductive to the practice of Islamic banking and finance. This article therefore explores the problems associated with resolving Islamic banking disputes through litigation and proposes arbitration as an alternative method for establishing a legal framework for dispute resolution in countries where Islamic banking is implemented.
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Rutledge, Peter B. "Discovery, Judicial Assistance and Arbitration: A New Tool for Cases Involving U.S. Entities?" Journal of International Arbitration 25, Issue 1 (February 1, 2008): 171–80. http://dx.doi.org/10.54648/joia2008009.
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Limited discovery is one of the regularly cited advantages of international arbitration, as opposed to international litigation, particularly in contrast to litigation in the U.S. courts. Recent decisions by U.S. courts, however, have threatened to upend this comparative advantage. Invoking a little known U.S. law, 28 U.S.C. section 1782, these courts have permitted parties in an arbitration to petition for subpoenas issued by U.S. courts against their adversaries or third parties. Bucking the trend in the academic literature, which largely supports this development, this article opposes reading section 1782 to authorize subpoenas in support of an arbitration. Not only does this undermine the sensible limits on discovery in arbitration, it risks undermining the entire arbitral process by creating an asymmetrical tactical device that systematically disfavors U.S. companies: foreign parties can use section 1782 petitions as a tool both to extract information from their U.S. adversaries and to bolster their settlement position. To avoid these deleterious results, section 1782 should be interpreted not to encompass international arbitral tribinals.
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Mitchell, Chester N., and Shona McDiarmid. "Medical Malpractice: A Challenge to Alternative Dispute Resolution." Canadian journal of law and society 3 (1988): 227–45. http://dx.doi.org/10.1017/s0829320100001393.
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Ideally, medical malpractice actions should deter medical negligence and compensate victims in a manner that is fair, speedy, cost-effective and accessible. Tort critics, however, argue that tort law in general and malpractice actions in particular do not match this ideal. But there is considerable debate about whether the identified faults are inherent or optional in tort adjudication. Those who believe adjudication itself is faulty propose alternative strategies including no-fault compensation schemes, public law prosecution and arbitration. In the paper's first section we consider whether the performance of the traditional adversarial system of dispute resolution in medical malpractice cases is inadequate. Arbitration's effectiveness as an alternative to litigation is then evaluated with reference to three arbitration models employed in the United States. We conclude that arbitration reforms offer distinct advantages but are no panacea for some basic justice problems that stem from political, legal and economic power imbalances between physicians and their clients.
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Assareh, Ali. "FORUM SHOPPING AND THE COST OF ACCESS TO JUSTICE: COST AND CERTAINTY IN INTERNATIONAL COMMERCIAL LITIGATION AND ARBITRATION." Journal of Law and Commerce 31 (November 27, 2013): 1–44. http://dx.doi.org/10.5195/jlc.2013.51.
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Kravchuk, S. "Legal prerequisites for consideration and settlement of disputes in international commercial arbitration." Uzhhorod National University Herald. Series: Law, no. 71 (August 25, 2022): 355–60. http://dx.doi.org/10.24144/2307-3322.2022.71.60.
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The article examines the problematic issues of the grounds for litigation in international commercial arbitration. The urgency of this topic is due to the need for a lack of clear definition of the prerequisites for resolving disputes, as well as the procedure for their use in the practice of international commercial arbitration. In addition, the problematic aspects of dispute resolution in international commercial arbitration are analyzed and procedural measures for their resolution are identified.
To achieve this goal, the material preconditions for dispute resolution in the ICA were studied and the procedure for resolving disputes was determined. The preconditions for transferring a dispute to international commercial arbitration, which are the advantages of arbitration compared to state courts, are, first of all, that it provides a more acceptable, accessible and simpler procedure for resolving disputes compared to state courts. In other words, it is a procedure established by the parties to the dispute, which in general can be adequate and adapted to make agreed decisions. Even when the parties turn to a permanent commercial arbitration, which has its own rules of procedure, they can provide for arbitration. The UNCITRAL Arbitration Rules of 2010 stipulate that when the parties decide to submit disputes to arbitration in accordance with these Rules, they shall be considered in accordance with these Rules.
The study identified a number of major risks and difficulties faced by the party in applying to a state court: ignorance of the procedure required for a foreign state court; the obligation to conduct the proceedings in the language of the court’s location; the existence of several instances and the procedural formalism that occurs when applying to the general courts; judges do not always have the appropriate competence to deal with disputes arising from foreign trade; gathering evidence and evaluating it on the basis of the national legal system.
The study concluded that the benefits of international commercial arbitration, in the presence of prerequisites for litigation, give much better benefits for litigation, which forms its authority among the relevant categories of legal entities and individual entrepreneurs.
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Jones, Douglas. "Third-Party Funding in International Arbitration: Useful Experience from Australia." BCDR International Arbitration Review 5, Issue 2 (December 1, 2018): 336–52. http://dx.doi.org/10.54648/bcdr2018011.
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Australia is renowned as a leading jurisdiction for litigation funding, underpinned by an expanding market and generally supportive legislature and judiciary. Less clear is the Australian approach to third-party funding in international arbitration. In an exploration of the Australian litigation funding landscape, this article seeks to understand whether any lessons can be gleaned in addressing the growing role of third-party funding in international arbitration.Through a consideration of the discrete issues of disclosure, confidentiality, costs orders, and security for costs, it is clear that both the Australian and international responses to litigation funding offer valuable guidance on issues surrounding third-party funding in international dispute resolution.
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Chevalier, Maxime. "From Smart Contract Litigation to Blockchain Arbitration, a New Decentralized Approach Leading Towards the Blockchain Arbitral Order." Journal of International Dispute Settlement 12, no. 4 (October 31, 2021): 558–84. http://dx.doi.org/10.1093/jnlids/idab025.
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Abstract Blockchain dispute resolution has led the crypto economy to the surge of a new form of dispute resolution: blockchain arbitration. Resolving disputes on-chain is becoming necessary as national and international legal frameworks are not adapted to the characteristics of blockchain transactions. More importantly, the legality of smart contracts is highly debated under various national laws. This new sui generis form of arbitration should not be assimilated with traditional arbitration. Indeed, blockchain arbitration might not fit within the traditional international arbitration framework, and it does not have to. Because blockchain arbitration operates as an oracle, the decision from the jurors automatically triggers or modifies the smart contract. Through the blockchain technology, arbitration has reached the possibility to automatically enforce arbitral awards with no need to rely on state courts’ authority. Observing the legal theories of international arbitration, blockchain arbitration enshrines the representation of delocalized arbitration, but simultaneously leaves room for a new representation of arbitration: decentralized arbitration. In the next decades, we will see the surge of the blockchain arbitral order, an independent legal order anchored in the Lex Cryptographia. This essay advocates for the recognition of the blockchain arbitral legal order and tries to draw its contours.
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Ali, S., and H. Huang. "Financial Dispute Resolution in China: Arbitration or Court Litigation?" Arbitration International 28, no. 1 (March 1, 2012): 77–100. http://dx.doi.org/10.1093/arbitration/28.1.77.
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Clifford, Philip, and Eleanor Scogings. "Which law determines the confidentiality of commercial arbitration?" Arbitration International 35, no. 4 (December 1, 2019): 391–99. http://dx.doi.org/10.1093/arbint/aiz025.
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Abstract Commercial arbitration taking place in England is commonly believed to be confidential, and this is often presented as an advantage over court litigation (which is generally not confidential). However, absent express provision, the precise extent of any confidentiality is a mystery to many and its legal basis, beyond being an implication as a matter of English law, remains unclear. In particular, what is the trigger for the implication: the venue for the arbitration, the seat of the arbitration or the law governing the arbitration agreement? This article addresses these questions.
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White, Frederick L., and William L. Stein. "Broker—customer arbitration: An attractive alternative to litigation." Journal of Futures Markets 7, no. 4 (August 1987): 459–60. http://dx.doi.org/10.1002/fut.3990070408.
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M. Zulhafiz, Wan, ., and . "The Role of Asian International Arbitration Centre (AIAC) as a regional Hub for Oil and Gas Sector." International Journal of Engineering & Technology 7, no. 3.21 (August 8, 2018): 345. http://dx.doi.org/10.14419/ijet.v7i3.21.17185.
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Hydrocarbons projects involve multiple parties, including sovereign states and corporations, to operate expensive, complex and high-risk activities. Alternative dispute resolution (ADR) is often preferred more by the parties than litigation to ensure the smooth running of the projects. ADR refers to all mechanisms of dispute settlement other than litigation such as negotiation, mediation, adjudication, and arbitration. The Asian International Arbitration Centre (AIAC) or formerly known as the Kuala Lumpur Regional Centre for Arbitration (KLRCA) is the main institution that administers and resolves all commercial arbitration disputes in Malaysia. This research argues that, due to the technicalities and complexity of operations in the oil and gas sector, there is a need to set up a special arbitration centre for oil and gas under the AIAC to handle and resolve the industrial disputes. Furthermore, by establishing the centre, it can help to promote the AIAC as the choice of arbitration hub, especially within the Organization of the Petroleum Exporting Countries (OPEC). In doing so, it is necessary to pass a special legal framework to enable the establishment of the centre. It may function as a roadmap by the key players of the oil and gas sector to recourse in resolving disputes. The methodology employed by this research is carried out in a prescriptive, comparative and analytic manner.
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Mimoso, Maria João, and Joana Lourenço Pinto. "The Third-Party Funding in Arbitration: A Challenge in Times of Crisis." European Journal of Marketing and Economics 4, no. 2 (October 1, 2021): 1. http://dx.doi.org/10.26417/742rno12l.
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Arbitration as a way of resolving disputes between companies is essentially linked to the advantages of arbitration, especially with the speed and neutrality of arbitration, as well as the confidentiality, the possibility of choosing arbitrators with precise technical knowledge in the area of litigation, among others. The parties choose arbitration as a means of resolving disputes, relating to interests of an equity nature, bearing in mind that for some legislators the emphasis is on the availability of rights, arising from the contractual relationship that unites them. The payment of costs is a sine qua non condition for the constitution of the arbitral tribunal. The parties must proceed with the payment of taxes and fees, respectively to the arbitration center they have chosen and the arbitrators they have chosen. Considering that the economic situation of the companies may fluctuate, either during the execution of the main contract, or when the dispute arises, the constitution of the arbitral tribunal and during the procedural iter, the possibility of financing the arbitration was outlined. Third-Party Funding is a figure that involves a third-party, unrelated to the litigation, who will defray the expenses due by one of the parties to the arbitration. It will have as a counterpart the participation in the eventual financial result achieved through the success of the arbitration. As a methodology, in addition to analyzing the state of the art, we will indicate real cases and the reasons for the growth of this instrument, without forgetting the ethical issues involved.