Investment arbitration has long been accused of lacking transparency. This is particularly the case with arbitral awards, which often are not made public. The decision to publish the final award or not is traditionally in the hands of the disputing parties. However, this does not mean that arbitral awards are necessarily either confidential (because parties have decided to keep them private) or public (because they are accessible to everyone). Indeed, there is somewhat of a tertium quid – awards that are only available to some members of the investment arbitration ‘clan’ but not to others. This article argues that the existence of such ‘clandestine’ or ‘semi-private’ awards not only undermines the transparency of investor-state arbitration but also undercuts the principle of equality of arms. ‘Equality of arms’ is a quintessential principle in investor-state arbitration procedure. The existence of concealed arbitral awards that circulate among hand-picked arbitration practitioners prevents the access of the general public to important arbitral decisions. In addition, it furthers the existence of information asymmetries in the ‘market’ for arbitration services, potentially affecting different stakeholders and undermining party equality. This feature of investment arbitration seems to be at odds with the requirements of the rule of law: accountable institutions that make their decisions in a transparent manner, ensuring the predictability of their rulings and the equality of the parties.
Ours is a nation built for conflict, for friction. Such conflict, while painful, can be good. It can signal newfound agency, and it can be a catalyst for dialogue, customized and creative solutions, and ultimately progress. This is what many resolution academics teach their students. But we are caught in such an extraordinarily polarized time, and many wonder what role can and should play in navigating a polarized era. That was the question addressed by Texas A&M School of Law's March 2020 symposium, with the resulting articles - by Baruch Bush & Peter Miller, Jonathan Cohen, Jill DeTemple, Noam Ebner, Deborah Eisenberg, William Froelich, Nancy Rogers & Josh Stulberg, Sharon Press, and Jennifer Reynolds - published in the Texas A&M Law Review and the Ohio State Journal of Dispute Resolution. Many of these articles suggest that while ADR thinking and are appropriate in dealing with current, divisive issues, they are not sufficient in and of themselves. We need to think beyond resolution - to conflict engagement, dispute process theory and strategy, to translations of resolution concepts to make them relevant for public officials and other local leaders. The symposium issue contains examples of such translations. We also need to reconsider some of the pillars of resolution practice - e.g., empathy, understanding, listening, self-determination. Are they always appropriate? Which are needed more, and when? And we need to think of our students not in terms of who they are today, but in terms of who they will be in the future - lawyers, leaders, and our emissaries in determining when and how to use and transform thinking and skills in a nation built for conflict.
This article makes the case for continued, robust support for the use of facilitation mediation in the State of Michigan and throughout the United States. Using Michigan's unique use of case evaluation, a form of ADR similar to non-binding arbitration, and the increasing preference for mediation in civil cases, this article suggests that ADR practitioners and providers should continue to make deliberate use of more facilitative techniques in order to preserve the differentiation and value of mediation relative to other ADR processes.
The concept of mediation is not new. Long before law was established, courts were organized, or judges had formulated law, people resolved their disputes informally through negotiation or mediation. Historically, states also used mediation to resolve their conflicts. In some cultures, such as China’s deeply rooted Confucian philosophy emphasizing harmony and conflict avoidance, mediation was used not an alternative, but an essential—and integral—part of the dispute resolution system. In modern society, mediation and other forms of alternative dispute resolution (“ADR”) regained popularity in reaction to the increasing proceduralization, formalization, and judicialization of arbitration, or the colonization of arbitration by litigation. This is particularly true in the field of investor-state disputes. Investor-state arbitration is becoming more confrontational, more lengthy and costly, and more judicialized. The final result may be unsatisfying, even to a winning party. For instance, in the case of Metalclad Corporation v. The United Mexican States, after winning a seventeen million dollar arbitral award against Mexico, the Chief Executive Officer of Metalclad expressed regret at having resorted to this mechanism by noting that despite “winning” the case, the arbitration had been so dissatisfying that he wished the company had relied on other options to resolve the dispute. The proceedings had spanned approximately five years, involved a battle in domestic courts, and the claimant’s side alone had an estimated four million dollars in direct and indirect costs. No doubt there were considerable costs endured by Mexico as well. This case shows “how the nominal winner is often a real loser—in fees, expenses, and waste of time,” as President Abraham Lincoln famously noted. In the widely discussed case of Achmea BV v. Slovakia, the arbitral tribunal remarked at the close of the hearing that it had a sense “that a settlement in this case would be a good thing, in that the aims of both sides seem to be approximately aligned, and that the black and white solution of a legal decision in which one side wins and the other side loses is not the optimum outcome in this case.” In light of some Governments’ and Non-Governmental Organizations’ (“NGOs”) increasing distrust of investor-state arbitration, mediation regained its momentum as a method of resolving investor-state disputes (“ISD”). Consider, for example, the inclusion of mediation in the dispute settlement provisions of a growing number of international investment treaties (“IIAs”), including Model Bilateral Investment Treaties (“BITs”), and multilateral investment treaties. Mediation’s momentum is also reflected by the Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention”), a new multilateral framework for the recognition and enforcement of mediated settlements. The Singapore Convention entered into force on 12 September 2020, and has 53 signatories so far, including China and the U.S. Although Singapore Convention does not extend expressly to investment disputes, many consider that at least some settlement agreements resulting from investor-State mediations will fall within its scope. In this context, what are the challenges and values of using mediation to resolve investor-state dispute? What is the existing framework with respect to the use of mediation in investor-state disputes, including treaties and soft laws? What will the future look like? This Article intends to address these questions surrounding the use of mediation to resolve ISD. Section II will address the challenges of investor-state disputes. Section III will discuss why mediation might be particularly beneficial in the ISDS context. Section IV will examine the existing legal framework with respect to investor-state mediation through an extensive treaty survey. Section V looks at the “soft laws” that provide specific guidance on mediation for ISD. Finally, Section VI concludes with prospects to the future.
This Article examines the strengths and weaknesses of ODR (online dispute resolution) from a psychological perspective. It makes five main points: (1) The phrase ODR is too broad to be useful. This phrase encompasses many different kinds of technology (computer, phone, video, mechanical pencil), many different kinds of dispute resolution (litigation, negotiation, arbitration, mediation), disputes arising in many different contexts (consumer, family, property, tax, employment, etc.), and many different roles (technology as neutral, technology as aide to neutral, technology as aide to disputant, etc.). In order to consider whether and when ODR can be most useful we will need to tease apart these various types of ODR. (2) Those who design all types of ODR should pay substantial attention to the psychology underlying disputes, and be conscious that merely using ODR to foster rational exchanges of information will likely not yield ideal dispute resolution. Many empirical studies already show that human psychology is critically important to dispute resolution. (3) In the short term my instinct is that humans will often have a comparative advantage over computers or other technology in handling the psychological aspects of disputes. I believe humans are likely to be more adept than technology at creating empathy, building rapport and trust, and helping to persuade people to rethink their strongly felt beliefs. (4) At the same time, we should all appreciate that technology is evolving quickly, and potentially will be able to do things we can’t easily imagine. As ODR designers work to refine ODR approaches they should focus on the human and psychological side of disputes. Perhaps holographic mediators will actually be able to build better empathy and rapport than many humans? (5) Rather than trust our instincts regarding the comparative superiority of humans and technology to handle human psychology we should test these approaches empirically. I appreciate that even my own instincts on these fronts may be wrong.
One of the most troubling issues in the Jewish family throughoutthe generations has been the problem of the agunah (literally a "chainedwoman"-one denied a divorce by her husband). In this paper my intentis to explore how modern contract doctrines can mitigate this problem. Inmy opinion, modern contract law supplies us with the necessary doctrinesand a framework for dealing appropriately with such an acute legal,religious, and social problem. I will discuss several common and wellknown contractual doctrines. Inter alia, following the research in the fieldof the relational theory of contract, I will investigate the feasibility andefficacy of implementing this theory as a contractual tool to alleviate theget refusal challenge. In addition, I will explore unconscionability, adoctrine that is based on public values and standards of appropriatebehavior, as an additional contractual tool for claiming that the free willand informed consent of the spouse bound to the "get settlement" wascompromised. Finally, I will elaborate on the theoretical usage of theunique "religious duress" doctrine, which has been extensively discussedso far mostly in the Christian context and examine its potentialimplications in our Jewish scenario.
In 1982, Chief Justice Warren Burger reflected on the litigation process and asked, “Isn't there a better way”? This question reflects the aspirations of the dispute resolution community for innovation and improvement of traditional processes of dispute resolution. Almost four decades later, in 2019, leading dispute resolution organizations convened a conference calling on this community to appreciate the legacy of past initiatives and engage the future of the field. This essay follows up that important conference, arguing that members of the dispute resolution movement should develop realistic theories of change to advance their goals. To provide material for theories of change, the essay sketches out some of the many goals for dispute resolution, sets forth strategies that have been used to advance these goals, and discusses factors that may affect the success of these efforts. As an example of a theory of change, it suggests a strategy to advance a particular high-priority goal: maintaining the vitality of the dispute resolution field in American legal education.
