Private Arbitration Research Articles

Bridging the enforcement gap in international trade: Participation in the New York Convention on arbitration

International trade transactions come with a peculiar hazard: unlike commerce inside national borders, there are no common courts or legal jurisdictions to enforce contracts should disputes arise. Distance, language, and cultural disparities further complicate contract enforcement for international trade. A 1958 United Nations treaty, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC), addresses this enforcement gap. NYC signatory countries commit to enforce the outcomes of private arbitration between importers and exporters. This commitment makes private international arbitration a viable legal alternative for dispute resolution, supported by state enforcement through national courts. This paper explores why many countries waited decades to join the NYC despite the obvious benefits. The puzzle is framed with a model of policy adoption – how the net benefits of membership, driven by trade interactions, social contagion or peer effects and internal barriers, influence the timing of membership decisions. In the data, countries are more likely to join when their regional trade partners do. The nature of traded goods is also a strong predictor of NYC membership, as countries that specialize in contract-intensive goods join sooner on average, relative to producers of undifferentiated commodities.

Who Settles Disputes? Treaty Design and Trade Attitudes Toward the Transatlantic Trade and Investment Partnership (TTIP)

AbstractWhat type of trade agreement is the public willing to accept? Instead of focusing on individual concerns about market access and trade barriers, we argue that specific treaty design and, in particular, the characteristics of the dispute settlement mechanism, play a critical role in shaping public support for trade agreements. To examine this theoretical expectation, we conduct a conjoint experiment that varies diverse treaty-design elements and estimate preferences over multiple dimensions of the Transatlantic Trade and Investment Partnership (TTIP) based on a nationally representative sample in Germany. We find that compared to other alternatives, private arbitration, known as investor-state dispute settlement (ISDS), generates strong opposition to the trade agreement. As the single most important factor, this effect of dispute settlement characteristic is strikingly large and consistent across individuals’ key attributes, including skill levels, information, and national sentiment, among others.

In the Shadow of Litigation: Arbitration and Medical Malpractice Reform

Abstract Alongside the dramatic growth in the use of mandatory, binding arbitration in the United States, proposals to use arbitration in lieu of medical malpractice litigation have proliferated as a mechanism for providing a more efficient and less costly way to resolve disputes. However, these proposals have largely been divorced from an understanding of the history, politics, and law of arbitration, which comes with a significant cost. Although liberals developed arbitration with the goal of ensuring access to justice for those who struggled to find it in traditional courts, conservatives (both in Congress and in the private sector) began to promote it in the latter part of the 20th century as a way to keep what they considered “lesser” cases out of court and to better protect corporate and other powerful institutional defendants from litigation. This article examines this transition toward the use of private, mandatory, and binding arbitration through three periods of institutional change: partisan conversion, judicialization, and privatization. It argues that it is essential to situate malpractice reform proposals in the history, politics, and law of arbitration in practice, where partisan efforts have privatized arbitration with significant effects for equality under the law.

Urban Planning in the Age of Airbnb: Coase, Property Rights, and Spatial Regulation

The rise of Airbnb and other forms of disruption occurring as part of the so called “sharing economy” have generated new challenges for urban planning and regulation. This paper asks whether the “Coase theorem” for addressing the problem of externalities might provide insights for addressing such challenges in addition to, or instead of, traditional forms of planning control. Focusing specifically on the manifestation of Airbnb as the largest global platform for online home-sharing, the paper identifies the range of externalities and impacts associated with different home-sharing practices under different neighbourhood and housing market contexts. It then examines the potential utility of the Coase theorem which argues that well defined property rights provide a basis for private arbitration and compensation over externalities, without the need for government intervention, to help resolve impacts arising from Airbnb style home-sharing. In particular, the paper examines whether the low transaction cost enabled by online platforms, may support new forms of bargaining and compensation as alternatives to traditional planning regulation and control, and the extent to which arbitrated solutions could address the spectrum of externalities associated with Airbnb and similar platforms. Data sources include public submissions to a 2015 government inquiry on the regulation of short term holiday accommodation (in the state of NSW, Australia), as well as a comparative analysis of the geography and scale of Airbnb listings in two distinct metropolitan and regional areas of the state (Greater Sydney and the Northern Rivers region of coastal NSW). The paper concludes that a Coasian approach might inspire more pragmatic alternatives to traditional forms of urban regulation and control but fails to address the wider spatial policy and housing market concerns associated with Airbnb style holiday rentals.

Response: Public Litigation, Private Arbitration?

Response: Public Litigation, Private Arbitration?

Are FTA’s making the World Less Free? A Case Study of TPP

On January 23, 2017, right after assuming presidency, US President Donald Trump did good on his promise and signed the executive order that withdrew USA from the very agreement that it commenced the negotiations for: Trans Pacific Partnership (TPP). The unratified multinational trade agreement encompassed 12 countries which accounted for %40 of the world’s GDP and over 800 million people. On a broader scope, TPP is often affiliated with two other trade deals; Transatlantic Trade and Investment Partnership (TTIP) and Trade in Services Agreement (TiSA) both of which in terms of content resemble a lot that of TPP. Given the fact that TTIP and TiSA are not complete and not entirely disclosed with the public, we shall be exclusively focusing on TPP. TPP has been subject to many controversies. But particularly the notion that TPP would enable corporations to sue governments in private arbitration tribunals over lost profits has drawn much attention. In this article we shall be investigating whether there is some truth to these allegations. Providing reference from the articles of the agreement, we shall be discussing the qualities of TPP’s judicial reforms. But firstly, in order to introduce the reader to the subject; we will be providing with some context, to properly frame the subject, and with some information about the nature of these agreements. Secondly, we shall be addressing our main issue. In addition, we will be questioning the framework within which the agreements are officially presented. Finally, a conclusion that compromises the author’s assessment of the case will be provided.

Investor to State Dispute Settlement (ISDS) Mechanisms: A Comparison of Evolving Legal Approaches in Brazilian and Latin American with the European Union

Investor to State Dispute Settlement (ISDS) Mechanisms: A Comparison of Evolving Legal Approaches in Brazilian and Latin American with the European Union

Public Private Arbitration in the Romanian Law

The disputes arising from these administrative actions, as defined by law, cannot be settled through arbitration. The only court that can revoke,entirely or partially, the administrative act, is the Administrative Court resolving the dispute. Thus, the public authority has to issue another administrative act or document, or to perform a certain administrative task. The court has also jurisdiction over the legality of administrative acts or tasks that were the legal basis of the document submitted to the court's attention. Arbitration is possible only in the case of administrative contracts, i.e. in the case of a convention, an agreement based on the parties' will, in which at least one of the parties is a public authority. As long as the jurisdiction over the settlement of disputes arising from unilateral administrative acts belongs exclusively to the national courts and the possibility of setting up an arbitral tribunal arises only in case of administrative contracts, we consider that the use of arbitration does not lead to the violation any democratic principles, on the contrary, it is the expression of a well functioning free and democratic society.

Bridging the Enforcement Gap in International Trade: Participation in the New York Convention on Arbitration

International trade transactions come with a peculiar hazard: unlike commerce inside national borders, there are no common courts or legal jurisdictions to enforce contracts should disputes arise. Distance, language and cultural disparities further complicate contract enforcement for international trade. A 1958 United Nations treaty, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC), addresses this enforcement gap. NYC signatory countries commit to enforce the outcomes of private arbitration between importers and exporters. This commitment makes private international arbitration a viable, legal alternative, supported by state enforcement through national courts. This paper explores why many countries waited decades to join the NYC despite the obvious benefits. The puzzle is framed with a model of policy adoption - how the costs and benefits of membership, driven by trade interactions, social contagion or peer effects and internal barriers, influence the timing of membership decisions. Countries are more likely to join when their regional trade partners do - trade by itself does not fully explain this pattern. Internal barriers to policy adoption also matter: on average, democracies join earlier, and countries with socialist legal origins have the shortest average delays to joining the treaty.

The Devil Is in the Details: Contracting With Managed Care

The Devil Is in the Details: Contracting With Managed Care

The Role of International Human Rights Law in Re-Shaping Investor-State Arbitration

Over the past few decades, a new process has dominated how States treat foreign investment and the consequences to States for breaching international standards. The system's key feature, the means for settling a foreign investor's dispute with a State that hosts the investment, lacks traditional elements of State judicial systems. Instead, it is a creature of State consent as reflected in international investment agreements (IIAs). In IIAs, States promise to treat foreign investment and the investors in a certain, fundamentally fair, way. Many IIAs authorize foreign investors and States to select private arbitrators to resolve claims that host States breached their promises under the IIA. The arbitrators, in turn, are empowered to issue arbitral awards.

The Social and Professional Structure of International Justice: From Scholarly Insiders to the Pull of Multinational Corporate Law Firms

Where does international justice draw its authority in an international scene largely driven by self-regulated professional markets for the settlement of transnational disputes? To revisit this classical debate, this article connects the professional and social structure of dispute settlement mechanisms to their social credibility among users of international justice. Drawing on extensive biographical databases, it suggests that the growth of investor-state disputes is favoring a shift from a professional market shaped by scholarly insiders to one dominated by corporate legal elites. It links this dynamic of the field to the contrasted development of the scholarly meritocracy of international adjudicators, and the model of the Wall Street law firm that sustains the expansion of private arbitration. These changes are further reflected in growing alignments within the wider marketplace of users of international justice to structural changes in the global economy that favor the expansion of flexible strategies of dispute settlement.

Another Perspective on Testamentary Arbitration

The American law of succession is remarkable both for its expansive concept of testamentary freedom and for its antiquated and cumbersome probate system. In principle, a testator enjoys virtually unlimited freedom to dispose by will of property owned at death, but enforcement of the testator’s directions generally requires a proceeding in a probate court to prove the will and appoint an executor to administer the estate. To avoid the expense and delay of court proceedings, transferors routinely use revocable trusts and other devices that replicate the effects of a will but operate outside the probate system. Moreover, some transferors seek to prevent their wills and trusts from becoming embroiled in litigation by requiring that disputes be resolved by private arbitration. The twin phenomena of probate avoidance and mandatory arbitration clauses stem from a common desire on the part of transferors to control the process as well as the substantive terms governing the disposition of their accumulated wealth. While transferors are generally free to dispose of property during life or at death without unnecessary court involvement, mandatory arbitration clauses raise controversial questions of enforceability and procedural fairness.

A short note on the Piraeus Maritime Arbitration Rules

In 2005, a private initiative stemming from the shipping community of Greece led to the establishment of the Piraeus Association for Maritime Arbitration (the ‘Association’), a private arbitration institution that would offer alternative dispute resolution services to parties involved in maritime disputes and would subsequently establish Piraeus as a maritime arbitration centre of global reputation. In this respect, the Maritime Arbitration Rules (the ‘Rules’) of the Association were published in 2007 in order to cover arbitration proceedings conducted under the auspices of the Association. The purpose of this article is to provide an overview of the main provisions of the Rules as well as to examine whether the Rules can contribute to the establishment of Piraeus as an attractive arbitral venue for the resolution of shipping-related disputes.

تسوية منازعات عقود نقل التكنولوجيا عن طريق التحكيم

Of the results that came out of globalization on the new reality and in the international arena, an unprecedented increase in international trade and the movement of goods and services and the movement of people .oakhzt a result of commodity and service institutions oriented internationally. As to what the world has witnessed tremendous progress in the communications process has led to the emergence of the need for systems different in those transactions .okan from within the affected so is the process of settlement arising from the investment and international trade disputes, and had to be way faster, less expensive and more efficient for the settlement of disputes, so it appeared to resort to arbitration in the field of international trade contracts in general and technology transfer contracts special, and then the international organizations and conventions have put points on the letters concerning the settlement of disputes in this area, whether it is between the state, institutions or individuals. After that appeared legislation that emphasizes turn in a private arbitration at the WTO, World Bank and the International Monetary Fund and international treaties. So arbitration is considered an appropriate way to resolve arising from the transfer of technology contract disputes

The Interplay between international law and labour law in South Africa: Piercing the diplomatic immunity veil

This article investigates the interplay between labour law and international law in the context of the diplomatic employment relationship. The overriding effect of the Constitution of the Republic of South Africa, 1996 as supreme law to protect the labour rights of employees is weighed against the effect of various binding international legal instruments aimed at protecting diplomats' right to immunity. In view of the competing rights of employees and diplomatic employers, the question in this regard is to what extent employees in a diplomatic employment relationship can rely on their right to "fair labour practices" in the broad sense and the overall protection afforded to employees whose rights are infringed. In view of the perception that diplomatic employers can hide behind a veil of diplomatic immunity and in the absence of judgments by the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court, answers and guidelines were sought from various international courts and legal instruments. However, it is pointed out that the application of labour law and international law to protect the interests of individuals against a state is an exceptionally sensitive and controversial issue. It is suggested that the international relationship between two states be used as a holistic framework, but it is cautioned that international law limits the diplomat employer's liability both in terms of the Bill of Rights and South African labour laws. The author shows that protection is afforded to diplomats/consular agents by international law. Moreover, the Diplomatic Immunities and Privileges Act (DIPA) of 2001 is discussed. It is submitted that employees are not prevented from taking legal action against a diplomat/consular employer in South Africa in terms of the Labour Relations Act (LRA) or the DIPA. The author suggests that diplomatic employees and employers should be made aware of their rights and obligations in this regard. In essence what really matters to any labour lawyer is how it can be justified that a group of vulnerable employees (diplomatic employees) is left without a remedy while the employer as the stronger bargaining party is protected in terms of international law. The author submits that employees should have access to compulsory private arbitration in terms of an amendment to the DIPA or in terms of a treaty. This must bind a diplomat/consular employer from South Africa (as the sending state) in a foreign state, and a foreign diplomat/consular employer in South Africa (as the receiving state) to protect employees. It is suggested that such a provision should be included in diplomatic contracts of employment after ratification of a treaty, even before it is enacted into relevant laws in South Africa. In view of the sensitivity and international consequences of labour disputes for states, it is suggested that private arbitration could serve as a useful dispute resolution procedure and an acceptable alternative to the general options available in terms of the CCMA, the labour court and the high court. It is suggested that the full protection of diplomatic employees' labour rights cannot be based on the status of their employers. Finally the author argues that lifting the veil of diplomatic immunity could provide a satisfactory interplay between labour law and international law to support the interests and rights of both parties to the diplomatic employment relationship.

What's Left to Remedy Wage Theft? How Arbitration Mandates that Bar Class Actions Impact Low-Wage Workers

For low-wage workers who suffer “wage theft” – employers illegally withholding portions of their wages – the dollars missing from their paychecks violate existing law and significantly impact the well-being of individuals, families, and communities. Despite this dire societal problem, the Supreme Court continues “closing the courtroom doors” in two ways: allowing employers to force workers out of court and into private arbitration; and prohibiting aggregate claims. Such trends, in combination, silence wage theft, leaving many claims unheard while unscrupulous employers gain direct advantage.This Article explains how various procedural rulings have combined to prevent meaningful redress for wage theft. Because of high transaction costs and relatively low potential damages, low-wage workers are likely to recover their lost wages only if they band together with similarly-situated workers in an aggregate lawsuit. However, collective action is under attack: AT&T Mobility v. Concepcion, the latest Supreme Court case to approve of mandatory arbitration clauses, allowed a corporation to impose “agreements” mandating individual arbitration and barring class actions.This Article brings new insights into the widening blind spot the Supreme Court has for the impact procedural rules have on the substantive rights of low-wage workers. Moreover, it touches upon a greater trend in American jurisprudence of courts shutting out plaintiffs, especially those unlikely to afford legal representation. By drawing attention to the unjust effects of facially neutral rules on low-wage workers, this Article contributes to the national conversation on how Supreme Court precedent limiting judicial access affects society’s most vulnerable.

The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement

This story begins in 1980, when a budding anti-lawsuit movement found an energetic champion in a new conservative president. Over time, the movement became a dominant feature of political life, as its narrative of activist judges, jackpot justice and a thriving lawsuit industry stirred partisan passions. And yet, some thirty years on, it is clear that the primary legacy of the anti-lawsuit movement is the movement itself – not legislative achievements, which have been few and far between, but committed adherents, including future Supreme Court Justices, lower court judges, and business leaders. Meanwhile, and also in the early 1980s, federal courts began a long, slow, and initially apolitical process of invigorating the staid legal backwater of arbitration. Over the next thirty years, arbitration came fully of age. By 2013, the Supreme Court had held that companies may freely and openly use provisions mandating one-on-one, confidential arbitration in standard form agreements with employees, consumers and others to escape the judicial system – and avoid potential exposure to class actions. And finally, over these same thirty years, class actions became a dominant force in litigation, having managed to dodge the most serious reform initiatives of the anti-lawsuit movement. Class actions – for better or for worse – have proven to be extremely powerful weapons in a wide variety of subject-matter areas, accounting for billions of dollars in damages settlements. Companies of all stripes dearly want to avoid class exposure. And so, as these three movements have unfolded over the past thirty years – separately and together – we are now at a unique point in our legal history: one that portends, quite literally, the end of doctrinal development in entire areas of the law. Companies, anxious to avoid any and all exposure to class actions are highly motivated to insert confidential, one-on-one arbitration mandates into the standard-form agreements that, over these same thirty years, have come to govern their relationships with employees, consumers, direct purchasers, and all manner of counterparties. As a result, all disputes under these agreements – whether they would have otherwise been brought as class or individual claims – will now be shunted into the hermetically-sealed vault of private arbitration, where there is no public, transparent decision-making process, much less stare decisis or common law development.

Rola rynku w kształtowaniu się zarządzania globalnego

This text reflects on the role of the global market, defined as the space where various relations between states and private entities take place. The following examples are provided in the case of the latter: private arbitration, rating agencies, International Standard Organisation, The Internet Corporation for Assigned Names and Numbers, and Codex Alimentarius Commission. The market is depicted in the context of a number of economic and financial phenomena constituting the contemporary face of globalization. The article also presents the diverging standpoints of researchers as concerns the role attributed to the market in global governance as the space of activities of non-state entities, especially considering the fact that – as a more and more vital holder of power exceeding that of state powers – private structures are acquiring broad autonomy within national and international law. Thereby, they become important regulators of jurisdiction and the international economy. From this perspective, globalization leads to the extension of the scope of rules regulating more and more fields of economic activity conducted beyond national borders. The further weakening of the role states have in relation to market powers and entities involved in a broad range of actions in economy, trade, and international finances is therefore plausible.

Convention collective — Validité de certaines clauses — Caractère légal d'un arrêt de travail destiné à les respecter

1. A clause in a labour agreement, according to which an employer undertakes not to require an employee to work on domestic nonunion shop goods, or on goods imported from a specified country is perfectly legal and valid. 2. A refusal on the part of employees to carry out work which an employer would require them to carry out in violation of such a clause would not constitute an illegal stoppage of work The Association of Millinery Manufacturers vs The United Hatters Cap and Millinery Workers International Union, Local No. 49; Judge Emile Trottier of the Court of Sessions of the Peace, single arbitrator. A.L. Stein, Q.C., counsel of the Association, and Me Philip Cutler, counsel for the Union, Private arbitration.