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 Contemporary Issues in International Arbitration and Mediation: The Fordham Papers, Volume 1 (2007): 2007

Contents

• • Preliminary Material (i-xxx)   (135K)
    • Jump to section:
    • Contents
    • Introduction By Arthur W. Rovine
    • Contributors
    • List Of Abbreviations And Acronyms
  • Applicable Law In Investor-State Arbitration (1-12)   (80K)
    • Jump to section:
    • Introduction
    • Article 42(1) Of The Icsid Convention
    • The Bit Cases
    • Conclusion
  • Fair And Equitable Treatment: Fairly And Equitably Applied In Lieu Of Unlawful Indirect Expropriation? (13-28)   (91K)
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    • Overview: Indirect Expropriation And The Fair And Equitable Treatment Standard
    • Cms V. Argentina
    • Lg&E V. Argentina
    • Enron V. Argentina
    • Sempra V. Argentina
    • Enron And Sempra Political Risk Insurance Claims For Expropriation
    • Azurix V. Argentina
    • Saluka V. Czech Republic
    • Pseg V. Turkey
    • Observations
  • In Search Of The Frontiers Of Indirect Expropriation (29-52)   (103K)
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    • An Imprecise Terminology And A Tentative Classification
    • A Quantitative Approach Is Used In Order To Determine The Existence Of A Potential Indirect Expropriation
    • Should A Qualitative Approach Be Used In Order To Modify The Conclusions Of The Quantitative Approach?
  • Understanding Performance Requirement Prohibitions In Investment Treaties (53-64)   (73K)
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    • What Are Performance Requirements?
    • Why Performance Requirements Are Poorly Understood
    • Why Performance Requirements Are Prohibited
    • Evolution Of Performance Requirement Provisions
    • What Cases On Performance Requirements Have Found
    • Conclusion
  • Damages In Investor-State Arbitration (65-84)   (104K)
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    • Standards Of Compensation For Unlawful Acts
    • Methods Of Valuation
  • How Proceedings Are Managed Up To The Hearing (85-96)   (74K)
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    • The Common Goals
    • Some Useful Techniques
  • The Conduct Of Substantive Hearings In International Arbitrations: What Approach Should An Arbitrator Adopt? (97-106)   (62K)
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    • Introduction
    • General Observations
    • Interventions
    • Timing
    • Opening Statements
    • Documents
    • Fact Witness Evidence
    • Expert Evidence
    • Closing Submissions
    • Conclusions
  • Anti-Foreign-Suit Injunctions To Enforce Arbitration Agreements (107-118)   (74K)
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    • The New York Convention And Anti-Foreign-Suit Injunctions
    • A Forum For Strong Enforcement Of An Arbitration Agreement
    • Case Law In The United States And United Kingdom Favoring Anti-Foreign-Suit Injunctions To Enforce Arbitration Agreements
    • Conclusion
  • Similarity In The Eye Of The Beholder: Revisiting The Application Of Rules Governing Jurisdictional Conflicts In The Lauder/Cme Cases (119-138)   (112K)
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    • Introduction: The Law Of Jurisdiction Regulation
    • The Lauder/Cme Litigation
    • The Traditional Tests For Determining Claim Similarity
    • Conclusion
  • Extended Jurisdiction Under Arbitration Agreements—A Threat To Effective Dispute Resolution (139-152)   (75K)
    • Jump to section:
    • Introduction
    • Separability/Kompetenz-Kompetenz
    • Narrow Or Broad Language Arbitration Clause
    • Separate But Related
    • Practical Problems
    • Is There A Remedy And Who Stands To Gain?
    • Business Reasons And Tactics Often Dictate Legal Decisions; Also The Parties Are To Blame
    • What Is The Remedy?
    • Are The Fee Schedules The Right Incentive?
    • Institutions, Hosting States, And Arbitrators Have To Earn A Reputation
    • Effective Court Intervention Is Required
    • Summary
  • When Should International Arbitrators Award Punitive Damages? (153-166)   (79K)
    • Jump to section:
    • Introduction
    • What Are Punitive Damages, And What Is Their Purpose?
    • Punitive Damages In International Arbitration
    • Can Arbitrators Award Punitive Damages?
    • Party Agreement
    • Applicable Law
    • Enforceability?
    • When May/Should International Arbitrators Award Punitive Damages?
  • Non-Pecuniary Remedies: The Practice Of Declaratory Relief And Specific Performance In International Commercial Arbitration (167-184)   (97K)
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    • Specific Performance And Declaratory Relief In Arbitral Practice
    • Icc Practice
    • The Iran-United States Claims Tribunal
    • Icsid And Other Investment Arbitrations
    • Ad Hoc Proceedings
    • The Arbitrators’ Power To Award Non-Monetary Relief
    • The Rules Of Arbitral Institutions
    • Recognition And Enforceability Of Awards Ordering Specific Performance And Declaratory Relief—In Particular Where States Are Involved
    • Awards Ordering Specific Performance
    • Limits Of Specific Performance And Declaratory Relief
    • Conclusions
  • Injunctions (185-192)   (60K)
    • Jump to section:
    • Introduction
    • General Principles
    • Arbitration
    • Practicalities
  • Defenses To The Enforcement Of An International Arbitration Award Based Upon Non-Arbitrability Or A Set-Aside Of The Award Where It Was Made (193-198)   (54K)
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    • The Defense Of Non-Arbitrability To The Enforcement Of An International Arbitration Award
    • A Defense To Enforcement Based On A Set-Aside Of The Award Where It Was Made
  • Recent Developments In Arbitrator Disclosure Law And Practice (199-216)   (90K)
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    • U.S. Law On Arbitrator Disclosure
    • Chartered Institute Guidelines For Interviews
    • Some Predictions
    • Appendix
  • Arbitrator Bias: How U.S. Courts Are Reacting To The Parties' Choice Of Ethics Codes For Arbitrators And The Implications (217-224)   (64K)
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    • History Of The Arbitrator Bias Standard
    • The Fifth Circuit And The Positive Software Case
    • Two Cases From California State Court
    • Conclusion
  • Claims Against Arbitrators For Breach Of Ethical Duties (225-246)   (109K)
    • Jump to section:
    • Introduction
    • Immunity Of Arbitrators: Common Law Judge Immunity Analogy
    • Civil Law Contractual Analysis
    • Examples Of Statutes Granting Immunity Or Imposing Liability
    • Examples Of Arbitral Rules Granting Immunity Or Imposing Liability
    • Institutional Powers Of Supervision
    • Claims Against Arbitral Institutions
    • Claims Against Arbitrators For Breach Of Ethical Duties
    • Should Arbitrators Appear As Defendants In An Action?
    • Should Arbitral Institutions Intervene When Its Arbitrators Are Sued?
  • Mediation Ethics: A Proposed Analytical Framework (247-264)   (88K)
    • Jump to section:
    • Overview
    • Lawyer As Advocate In Mediation: Candor
    • Mediator: Conflicts Of Interest
    • Provider Organizations: Accountability
    • Observations
    • Appendix A
    • Appendix B
  • Critical Components For Mediation Training (265-282)   (88K)
    • Jump to section:
    • Introduction
    • Criteria For Mediation Training
    • Critical Attributes For Successful Adr Programs
    • Appendix: Guidelines For Ensuring Fair And Effective Court-Annexed Adr: Attributes Of A Well-Functioning Adr Program And Ethical Principles For Adr Neutrals
  • The Explosive Growth Of International Mediation (283-290)   (61K)
  • Mediation And Its Uses Beyond The Obvious (291-296)   (51K)
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    • The Versatility Of Mediation
    • Pushing Back The Boundaries
    • Project Mediation
    • Deal Mediation
    • Conclusion
  • International Mediation (297-308)   (74K)
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    • The Challenge Of Breaking An International Deadlock
    • A Sophisticated Market?
    • The Winning Formula?
    • Can Arbitration And Mediation Be Partners?
    • Form And Flexibility
    • What Makes A Great Negotiator And Mediator?
    • Conclusions
  • Mediation In Hong Kong (309-314)   (259K)
  • A Note On Institutional And Ad Hoc Mediation (315-318)   (54K)
    • Jump to section:
    • The Success Of Mediation In Different Jurisdictions
    • Cross-Cultural Diversity
    • Institutional And Ad Hoc Mediation
  • Index (319-336)   (80K)