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Almost three decades ago, the US Supreme Court acknowledged in Mitsubishi Motors v. Soler Chrysler-Plymouth that “[a]s international trade has expanded in recent decades, so too has the use of international arbitration to resolve disputes arising in the course of that trade.” Global economic integration has been fueled by technological innovation and development ever since, as information technology and affordable transportation have continued to erase the relevance of national borders for investments and other kinds of commercial activities. This has increased the importance of transnational dispute resolution, including under agreed arbitral regimes in bilateral investment treaties, free trade agreements, or investment agreements with host states. Not surprisingly, international law has gained an increasingly important role.
Global trade, international business transactions, and cross-border commerce compel us to expand our horizons, and our Section is also broadening its reach: This month’s issue of Dispute Resolution Magazine provides a wealth of information about the robust development and growth of international dispute resolution.
Since those early NAFTA days, hundreds of claims have been initiated under other treaties. As in Ethyl, they have been brought directly against the host state, relying on guarantees advanced in a treaty (usually a bilateral investment treaty, or BIT). Like NAFTA Chapter 11, such treaties aim to stimulate foreign direct investment by reciprocally promising minimum levels of treatment for qualifying investors. These pledges include, for example, that the host state will treat the other state’s investor in a fair, nondiscriminatory manner and will pay full compensation in the event of an expropriation. The arbitral claim mechanism is available should the investor believe it has suffered damages resulting from the host state’s failure to abide by one or more of its treaty undertakings. Such a claim may proceed without the investor seeking permission from its home state.
How diverse is the world of international arbitration? As an African American who has practiced and researched in this field for more than 32 years and watched women and minorities – slowly, in too-small numbers – join the ranks of international arbitrators, advocates, and others, I have always been curious about whether my own experience is typical. To provide a current assessment of the diversity in international arbitration, I expanded on the methodology I used in two earlier articles about American minorities in international arbitration.
In any family law matter, each parent has his or her own baggage, personality, and panoply of emotions. The parents in a parental child abduction case typically have very high emotions, and the abduction itself can create a sense of emergency. When one parent takes a child across international borders, the case becomes even more complicated.
For some time now, the European Union has been interested in promoting mediation as part of its general policy of supporting access to justice and providing freedom and security for all citizens. The EU’s most explicit intervention is the Mediation Directive of 2008, whose purpose is to support mediation as an alternative means of out-of-court settlement for civil and commercial disputes. Mediation advocates consider the directive a significant milestone, but their dream of seeing mediation solidly established in Europe has not yet been realized: Each year, only a small number of cases actually go to mediation.
To start looking at these questions, we decided to go beyond the institutional structure of court-connected mediation programs and see what a brief survey might tell us about the perspectives and experiences of mediators themselves. The goal of our survey was to learn a bit about the mediators, the nature of their practice, the source of their referrals, and how deeply people in their communities accept mediation as a dispute resolution option. A preliminary understanding of these issues, we believe, might guide ADR policymaking and prompt future research efforts.
Much of this growing body of law “regulates” in the most common use of the word, as the legal provisions seek to affect human behavior. But not all. Some mediation laws instead merely establish a program and provide a level of confidentiality, and some case law does not change the interpretation of the law being applied. We focus in this article on those laws that regulate, and we contrast them with informal program rules, standards, and practices that do not carry the force of law, measures we call “programmatic” approaches.
Despite efforts that began more than 10 years ago with the creation of the Uniform Mediation Act, there is no uniformity in the United States as to how or when information disclosed in mediation may be used or protected from use in subsequent legal proceedings. This confusion about the protection of information may discourage parties in commercial disputes from using mediation. For those parties who decide to enter mediation, the Model Standards of Conduct for Mediators make the mediator responsible for promoting understanding “of the extent to which the parties will maintain confidentiality of information they obtain in a mediation.” (Standard V.C.)
In this article, the authors analyze the outcomes of nearly 3,200 awards issued in employment disputes settled by arbitration in the securities industry between 1986 and 2008. The large amount of litigation in the securities industry alleging discrimination by securities firms against the women they employ led the authors to hypothesize that women would do less well than men in these arbitration cases. The study revealed that the gender of the complainant and the complainant’s attorney (but not the gender of the respondent’s attorney or the arbitrator) had significant effects on the size of the awards.
In Hong v. CJ CGV America Holdings, Inc., No. B246945 (Cal. Ct. App. Dec. 18, 2013), the court held that under the Federal Arbitration Act, the issue of whether a party waived arbitration by substantially participating in litigation is an issue for the court, not the arbitrator. In this shareholder derivative action, the defendants participated in discovery and other pretrial activities before moving to compel arbitration. The trial court denied the motion, holding that the defendant waived the right to arbitration by “substantially participating in the litigation.” On appeal the defendants claimed that under the FAA the arbitrator should decide the issue of waiver by participation. The court of appeals pointed to the overwhelming weight of federal and state courts that have addressed the issue and have held that waiver by litigation is generally an issue for the court, not the arbitrator, and in this case the arbitration clause did not specifically provide otherwise.
Interested in exchanging ideas and making connections, a small delegation of leaders of the ABA’s Dispute Resolution Section traveled to Vietnam last October and met with ADR professionals and members of that country’s Ministry of Justice before heading to Thailand for similar conversations with officials there. Throughout all these meetings, the delegation’s aim was to learn from others and help our counterparts in these two countries promote mediation as a way to resolve disputes in their own countries and across their borders.
On April 4, at its Spring Conference in Miami, the American Bar Association’s Section of Dispute Resolution will present its annual D’Alemberte-Raven Award to Gov. Bill Richardson. Richardson, who has served as a two-term governor of New Mexico, a US ambassador to the United Nations, and Secretary of the US Department of Energy, also spent 15 years in Congress, where he was deputy majority whip, chairman of the Congressional Hispanic Caucus, and chairman of the House Natural Resources Subcommittee on Native American Affairs.