Available at https://www.ibanet.org/Res-judicata-in-international-arbitration
This report concludes that it is possible to develop guidelines on autonomous res judicata standards and that it is desirable for the IBA Arbitration Committee to do so. At the same time, the report recommends that the guidelines should be limited to the res judicata effects of a commercial arbitration award on subsequent commercial arbitration proceedings and, at least not initially, address the “identity of parties” requirement.
A majority of international commercial arbitration tribunals determine the question by applying domestic law on the basis of a conflict-of-laws analysis. However, for three main reasons, this approach fails to provide consistency or predictability in resolving this question. First, there is great divergence and inconsistency in the application of the choice-of law criteria, and tribunals often fail to properly reason their decisions. Second, different jurisdictions have different approaches regarding the scope of res judicata, which inevitably leads to divergent outcomes depending on the chosen applicable domestic law. Third, domestic law criteria for res judicata have been developed in the context of domestic court judgments and are not always properly suited for international arbitration proceedings.
On the other hand, some tribunals have started to veer away from a pure domestic law approach to res judicata and have also applied transnational or autonomous res judicata standards that are more tailored to the specific needs of international arbitration. In sum, there is a high degree of uncertainty and unpredictability regarding the application of res judicata to commercial arbitration awards.
Journal of International Arbitration 41(6): 723-744 (December 2024)
In 2021, the Saudi Center for Commercial Arbitration (SCCA) collaborated with the Saudi Ministry of Justice (MOJ) in soliciting over 1400 judgments between 2017 and 2022 relating to motions in aid of arbitration proceedings and motions to enforce or annul arbitral awards. This article outlines SCCA’s statistical findings based on the culmination of three years of case law review. In 2023 alone, SCCA reviewed 700 court of appeals judgments from 2022, and for the first time, three Supreme Court judgments. Out of 716 motions filed with the courts of appeal, 316 (44%) related to awards, which SCCA closely examined. The results show continued judicial support in aid of arbitration. Eighty-eight (27.85%) of the 316 motions were motions to annul the award. Of the 88 motions to annul only five (5.68%) were successful. Notably, only 13 Sharia-based grounds to annul awards were raised in 2022, none of which succeeded.
Overall, the study revealed an enforcement rate exceeding 92% in every batch of reviewed judgments. Further, the findings reflect court decisions that demonstrate a sophisticated understanding of the parameters of the Saudi Arbitration Law that was modelled on the UNCITRAL Model Law and adds Sharia as an additional requirement that is on the same footing as public policy. The outcome of this research will be welcomed by local as well as foreign investors seeking assurance that their investment is protected in case a dispute arises.
Journal of International Arbitration 41(3): 371-396 (June 2024)
This study aims to identify the determinants influencing the selection of commercial arbitrators and examines whether a managerial level position affects this decision. Data were collected through interviews with 480 managers across five managerial levels in businesses with arbitration agreements in Vietnam’s leading arbitration centres. The results of a partial least squares–structural equation modeling (PLS-SEM) analysis suggest that the decision to choose a commercial arbitrator is indirectly influenced through the mediating intention by five factors related to the characteristics of the commercial arbitrator. These factors are as follows: legal expertise; reputation, knowledge and experience; time and cost of dispute resolution; litigation process; and business manager’s risk perception regarding the dispute at hand.
The Review of International Organizations 19(5): __-__(December 2024)
This paper seeks to explain why some investor-state dispute cases are settled before reaching the ruling stage in democracies, focusing on disputes triggered by regulatory changes made by a host government. The theory is that right-leaning governments are more likely to settle because they are more willing to make regulatory concessions to appease foreign investors and attract investment. In contrast, left-leaning governments prefer arbitral rulings over settlements, as they view settlements as a capitulation to foreign investors’ demands at the expense of public welfare. Original data from 335 investor-state disputes involving democratic host countries between 1994 and 2020 shows support for this claim. The paper employs a multi-method research design, integrating large-scale quantitative analysis with qualitative evidence from case studies.
Conflict Resolution Quarterly 41(4): 507-524 (Summer 2024)
Oman and its conflict management model are the focus of this paper. This model has crystalized out of the three stand-alone but complementary systems of conflict resolution which evolved in an ad hoc fashion: the institute of tribal leaders, the reconciliation committees, and the formal judicial system. These systems offer a foundation for the current efforts of the local people to sustain a peaceful co-existence among the vibrant and ethnically diverse Omani communities known for their turbulent past. The analyzed data obtained from interviews with Omani tribal leaders, reconciliation committee members, and lawyers shed light on both the strengths of the conflict management model and the modern challenges which the model faces. The findings confirm that this model represents a coherent entity run by an integrated constitutional-tribal order. They also suggest that the model serves as a state mechanism for balancing power between the country's major players—the government and the institute of tribal leaders. The novel contribution of this paper lies in linking the origin and philosophy of each system with the “mediation identity” of Oman's foreign policy.
Available at SSRN: https://ssrn.com/abstract=4740074 or http://dx.doi.org/10.2139/ssrn.4740074 (February 2024)
Disagreements over business deals, land boundaries, and loan non-repayments are common impediments to economic transactions. To resolve such disputes, people in low-income countries are often forced to choose between costly and slow formal courts, or informal Dispute Resolution Mechanisms (DRMs) that lack state-sanctioned enforcement powers. Can a decentralized judicial institution run by locally elected officials increase access to justice by combining the best aspects of formal and informal dispute resolution? Can such an institution decrease the burden on higher-level courts and increase investment and growth? The authors evaluated the effects of the government introducing Village Courts (VCs) in rural Bangladesh using a large-scale randomized controlled trial. The introduction of VCs more than doubled the share of disputes resolved in state-sanctioned courts, but the ubiquitous informal institution called shalish remained the most commonly used DRM. There was some substitution from shalish to VC, but the district court congestion, economic activities, and social dynamics remained unaffected. The elected leaders in charge of implementing VCs were also involved in settling shalish cases, and therefore the potential of VCs was limited by the constraints on their time. The authors conclude that without further investment in state capacity, the VC cannot supplant the even more decentralized shalish system.
Journal of Economic Behavior & Organization 230: 106883 (February 2025)
Despite an extensive literature on the determinants of dishonesty, there is limited understanding of how cultural values influence such behavior. To address this gap, the authors conducted experiments to examine whether power distance, a cultural dimension identified by Hofstede (1984) and defined as the extent to which an individual accepts that power is unequally distributed, affects dishonest behavior. The results showed that power distance is not only positively correlated with dishonest behavior at both the individual and the country level, but also causally affects the likelihood of engaging in dishonest behavior. The findings shed light on the role of cultural values in dishonest behavior.
Journal of Social Welfare and Family Law (January 2025), DOI: 10.1080/09649069.2025.2454105
This article examines Muslim women’s experiences of Islamic evaluative mediation within Shari’a Councils on seeking an Islamic divorce, including women who have experienced domestic abuse and encounter power imbalance. The article draws on the authors’ exploratory study of 30 Muslim women in England who have experienced domestic abuse and details their use of such services, the desire for informal justice and the processes involved. Islamic mediators act as evaluative mediators and can influence the decisions reached by the participants and give advice. These findings revealed new evidence relating to an egalitarian (gender-just) framework being used within Shari’a Councils (from the Qur’an, Sunna) and in contested situations for women using Islamic evaluative mediation. Second generation women were more willing to access the English family justice system especially in circumstances of suffering domestic abuse. First generation women were simply not aware of the possibility or were influenced by patriarchal silencing within families and communities.
Conflict Resolution Quarterly 41(4): 573-590 (Summer 2024)
In Australia, it is mandatory for separating couples to attempt Family Dispute Resolution (FDR/mediation) before taking a parenting matter to court. In this context, some clients may attend FDR solely as a means of accessing court processes. This article examines key outcomes across a large sample of FDR clients in a community sector organization. Participation, rates of agreement, levels of satisfaction, and levels of acrimony are assessed for the sample as a whole and for a subgroup of those indicating their intention to proceed to court. Strong rates of participation, agreement, and satisfaction are reported for the full sample, and significant reductions in acrimony are evident among those who reached agreement in FDR. The authors find that those who indicate ambivalence to negotiating parenting matters in FDR nevertheless derive benefit from participation in terms of reduced acrimony, satisfaction with the process, and reaching some level of agreement.
Negotiation and Conflict Management Research 17(4): 292-317 (2024)
What little prior empirical research that investigated the effects of mindfulness meditation on negotiation performance was conducted in Singapore and the UK and finds benefits. This research reports a mini meta-analysis of ten studies (N > 1100) conducted in the US on the effect of a brief mindfulness meditation induction on negotiation outcomes and finds a small detriment in terms of value claimed. The authors had initially hypothesized that mindfulness meditation would help individuals obtain better objective outcomes by claiming more value for themselves due to reduced emotional interference and enhanced flexibility of thought. However, the first study found a moderately strong result in the opposite direction – participants who had just meditated obtained worse objective outcomes by claiming less value than participants in the control condition who had not meditated. In terms of subjective negotiation outcomes, participants in the mindfulness condition reported marginally less satisfaction with the instrumental outcome compared to participants in the control condition. Then nine further experiments were conducted with no significant effect of mindfulness on objective outcomes being obtained. The meta-analysis of the total effect on value claiming across these ten studies was significant (p = .020), negative, and very small (aggregated d = -0.138, 95% confidence interval [-.256, -.021]). The authors also ran a second meta-analysis on value creation on the appropriate subset of participants and did not find a significant total effect in either direction (p = .609, aggregated d = -.076, 95% confidence interval [-.367, .215]). Implications for theory and practice are discussed.
Journal of Personality and Social Psychology 127(4): 758-795 (October 2024), https://doi.org/10/1037/papa0000404
Seeing a situation as a zero-sum game, where one party’s success must come at the expense of another, stifles cooperation—even when such cooperation could greatly benefit both parties. Consequently, zero-sum beliefs can undermine progress when cooperation is needed for success. In this article, the authors propose that zero-sum thinking (any specific instance of zero-sum construals or beliefs) can also be understood as a broader mindset—a generalized belief about how the world works. Thus, the zero-sum mindset predisposes one toward zero-sum thinking, and its cognitive and strategic consequences, across situations and domains. In an investigation spanning six countries (Belgium, India, Italy, Pakistan, the United Kingdom, and United States) on three continents, and more than 10,000 unique participants, cross-sectional, longitudinal, and experimental methods are used to provide foundational evidence for the zero-sum mindset. In Studies 1–5 (Concept), findings show that the zero-sum mindset is distinct from existing concepts, stable over time, and predictive of disparate instances of zero-sum thinking and its strategic implications across domains and cultures. In Studies 6–7 (Cognitions), findings show that zero-sum configurations of success promote hostile interpretations of others and that the zero-sum mindset predicts this bias even in objectively non-zero-sum situations. In Studies 8–9 (Consequences), findings show that the zero-sum mindset predicts lower cooperation even in situations where cooperation is a matter of life or death. These findings call attention to the way lay game theories such as the zero-sum mindset bear critical implications for the cognitions and attitudes that drive social behavior and success.
Editors’ note: Recognizing that conflict resolution procedures are being developed and used in a wide variety of multidisciplinary settings, this Dispute Resolution Magazine regular feature showcases lessons to be learned from empirical studies of our broad field. Twice a year, “Research Insights” summarizes, in the authors’ own words, published or forthcoming articles with research findings relevant to readers. The current issue focuses exclusively on international and comparative ADR research, which is a rapidly growing part of the empirical research landscape.
