Arbitration of a Help System

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Arbitration as an Alternative Means of Settlement of Disputes Arising Out of Thailand\u27s State Contracts Involving Foreign Direct Investments

This dissertation examines how the Office of the Attorney General of Thailand\u27s mandates in reviewing state contracts might be improved in order to help enhance greater FDI flow toward Thailand. International arbitration would be stipulated within the settlement of disputes clause included in a state contract so as to assure and gain foreign investor\u27s confidence. This dissertation has been conducted by examining all levels of relevant national legislation as well as international law, especially those international obligations that Thailand has entered into. Based upon such examination, there are at least two (2) problems and obstacles that make the application of arbitration for state contracts in Thailand a continuous struggle: the initial impediment to the arbitration system and the contradiction and inconsistency of the arbitration system. Given the findings, there should be a mechanism, namely, a Testing Process that would help differentiate a state contract relating to qualifying FDI from others. Only the defined state contract relating to qualifying FDI subject to the Testing Process will be governed by a proposed Uniform and Standard Methodology of Arbitration, encompassing the ratification of the ICSID Convention on part of Thailand; the establishment of the Special Method; and the modification of the existing arbitration laws and regulations

Arbitration as an Alternative Means of Settlement of Disputes Arising Out of Thailand\u27s State Contracts Involving Foreign Direct Investments

This dissertation examines how the Office of the Attorney General of Thailand\u27s mandates in reviewing state contracts might be improved in order to help enhance greater FDI flow toward Thailand. International arbitration would be stipulated within the settlement of disputes clause included in a state contract so as to assure and gain foreign investor\u27s confidence. This dissertation has been conducted by examining all levels of relevant national legislation as well as international law, especially those international obligations that Thailand has entered into. Based upon such examination, there are at least two (2) problems and obstacles that make the application of arbitration for state contracts in Thailand a continuous struggle: the initial impediment to the arbitration system and the contradiction and inconsistency of the arbitration system. Given the findings, there should be a mechanism, namely, a Testing Process that would help differentiate a state contract relating to qualifying FDI from others. Only the defined state contract relating to qualifying FDI subject to the Testing Process will be governed by a proposed Uniform and Standard Methodology of Arbitration, encompassing the ratification of the ICSID Convention on part of Thailand; the establishment of the Special Method; and the modification of the existing arbitration laws and regulations

Arbitration and Judicial Civil Justice: An American Historical Review and a Proposal for a Private/Arbitral and Public/Judicial Partnership

Dispute resolution systems historically have included three primary forums: the judicial process, administrative procedures, and the arbitral system. This article focuses on the modem and rapidly expanding third system - that of arbitration. The goal of everyone interested in maintaining a fair, accessible, and affordable civil justice system is to monitor, shape, and maintain arbitration as a fair, accessible, and affordable system. The purpose of this article is to provide information and ideas which will help make that goal a success. The first part of this article explains the historical development of arbitration in this country prior to and under the Federal Arbitration Act (the FAA) and continuing through to the present day. The second part of this article begins with an exploration of the basic and essential factors that traditionally comprise the American way to resolve disputes fairly. This part concludes with an innovative proposal promoting the development of a public and private partnership between arbitral associations and the judicial system to offer and support a fair, accessible, and affordable arbitral/judicial process

Dispute Resolution in the Boundaryless Workplace

Since the Supreme Court\u27s decision Gilmer v. Interstate/Johnson Lane Corp. which compelled an employee to submit his age discrimination claim to arbitration under the Federal Arbitration Act (FAA), there has been a dramatic increase in the number of nonunion firms adopting arbitration systems. At the same time, there has been a flood of lawsuits challenging these employment systems, and a corresponding avalanche of judicial opinions addressing the legal issues left open in Gilmer – issues such as the problematic nature of consent in employment arbitration, the deficiencies in due process, and the applicability of the FAA to employment contracts. These developments comprise the past and the present of employment arbitration, and were explored at length at the Symposium. This article addresses the future of dispute resolution in the workplace. The workplace is changing in ways that make arbitration, as well as other types of dispute resolution, more important than ever. In the changing workplace, it might be possible to design an arbitration system that would help to promote workplace fairness

Interim Measures in International Commercial Arbitration – A Comparative Study of the Egyptian, English and Scottish Law

Interim Measures are viewed as an essential means to protect parties‘ rights in international commercial arbitration disputes. Most Arbitration Laws and Rules have recognised the arbitral tribunal‘s power to grant such measures. The success of this system relies on the court‘s assistance of the tribunal during the process. This relationship between the tribunal and the court is something vague under Egyptian Law, since there are no clear rules addressing the matter. Hence, this research examines the theories that explain the tribunal‘s authority and the relationship with the authority of the court. This study uses a comparative analytical approach in terms of analyzing relevant legal texts to determine the optimal legal approach to the issue. The purpose of the study is to address deficiencies in the Egyptian law – the Code of Civil Procedure and Egyptian Arbitration Law – and compare it with English, Scottish Arbitration Acts and international arbitration systems, laws, and practices. The findings of this research offer several recommendations that could help achieve a successful and smooth arbitration process. This study identifies and explains types of interim measures and explores the international practice of every type. It gives some important recommendations for future development and improvement of the Egyptian law. It also makes general recommendations that would help improve the efficiency of the English and Scottish laws

A Constitutional Right To Discovery? Creating and Reinforcing Due Process Norms Through the Procedural Laboratory of Arbitration

This article explores an overlooked dynamic between arbitration and the more formal court system. As developed in more detail below, this article\u27s thesis is that arbitration can help define and reinforce due process norms applicable in court, and a due process-like norm regarding discovery is beginning to develop. Courts often review arbitration agreements for fairness, and through this judicial review, courts have developed a body of law discussing and defining whether certain procedures (or the lack thereof) violate fairness norms in connection with the resolution of a particular dispute. Through this body of law exploring procedural fairness, one can identify emerging procedural norms, such as a right to discovery in certain situations. Through the procedural creativity and experimentation that occurs in arbitration, and through the judicial review of such arbitral procedures, arbitration creates countless opportunities to explore and define what constitutes the minimum bundle of procedures required for a fair hearing. Part II of this article provides a general overview of arbitration and arbitration procedures. Part III of this article then explores the legal framework supporting arbitration, including how courts review arbitration procedures for fundamental fairness. Part IV concludes with a discussion of how this judicial review of arbitration procedures helps define and reinforce due process norms applicable in courts, particularly with respect to an emerging due process right to discovery

Cultural determinants of workplace arbitration in the U.S. and Italy. WP CSDLE “Massimo D’Antona”.INT – 112/2014

Globalization of employment is making knowledge of labor and employment law of all nations an imperative. At the same time, comparative legal studies can help nations learn from one another and improve on existing legal systems. As the United States Supreme Court is hurtling U.S. employment law into private dispute resolution and the Italian labor law system is under substantial pressure for reform as a result of economic stresses, a comparative study of workplace arbitration in the two countries is timely. This article looks at the law and impact of workplace arbitration in the United States and Italy with a goal of analyzing the influences that led to the current systems and determining whether the countries can derive any useful lessons from one another. First, the article looks briefly at the labor and employment law systems in the two countries. This analysis lays the backdrop for a discussion of the evolution and use of arbitration in the two countries. The article then moves to an analysis of the similarities and differences between arbitration in Italy and the U.S. and the reasons for those differences. Finally the article focuses on lessons that can be drawn from the two systems. The employment arbitration system in the U.S. is currently weighted in favor of employers, and could learn from the Italian protection of workers. The article suggests several modifications that would provide better balance in the current system. But the article concludes that the historical and cultural forces that have shaped arbitration in the two countries make it unlikely that either will change significantly in the near future

Is It the Real Thing ? How Coke\u27s One-Way Binding Arbitration May Bridge the Divide Between Litigation and Arbitration

Although the scholarly literature is replete with discussion of the pros and cons of mandatory arbitration and civil litigation, relative to one another, there has been no examination of one-way binding arbitration as a potential bridge between these procedural poles. The goal of this article is to fill that void. One-way binding arbitration requires an employee to use arbitration to resolve workplace disputes, but also gives the employee, but not the employer, the option of rejecting the arbitrator’s decision. In the event the employee is not satisfied with the outcome of arbitration, she can still pursue her claim in court. This collaborative alternative may help to alleviate workplace conflict. Employees today are stuck between a rock and a hard place. On the one hand, they are increasingly forced to sign pre-dispute arbitration agreements as a condition of employment. Employees are bound by arbitration – an alternative to civil litigation that often does not offer the full panoply of procedural protections. On the other hand, workers seeking relief from the federal court system for employment claims are increasingly finding the system inhospitable to their claims. While the federal courts offer more robust procedural protections than arbitration, they pose obstacles of their own, such as administrative agency backlog, more rigorous pleading requirements, and high dismissal rates. This has put employees in a bind, requiring the consideration of fresh alternatives. A promising and unique alternative is one-way binding arbitration. This unilateral arrangement – voluntarily adopted by The Coca-Cola Company, is a groundbreaking and novel approach to promoting arbitration, while also protecting employee choice and access to the court system. Companies can enjoy all of the benefits of arbitration – such as efficiency, privacy, costs savings and litigation avoidance – while supporting the due process rights of workers and bolstering workplace relations that may enhance profitability. The legal system also profits from arbitration arrangements that relieve administrative and judicial caseloads, promote settlement and reconcile competing dispute resolution systems. One-way binding arbitration has its own limitations, which requires that important safeguards be used. However, given its transformative potential, employers and employee advocates should consider it as an alternative to compulsory binding pre-dispute arbitration. One-way binding arbitration offers society another option along the continuum between mandatory, pre-dispute arbitration and civil litigation – providing society with a compromise that seeks to balance the benefits of both worlds and reconcile their differences. This article is part of a series examining the impact of procedure on civil rights. See Suzette M. Malveaux, Statutes of Limitations: A Policy Analysis in the Context of Reparations Litigation, 74 Geo. Wash. L. Rev. 68 (2005) and available at http://ssrn.com/abstract=1484804; and Suzette M. Malveaux, Fighting to Keep Employment Discrimination Class Actions Alive: How Allison v. Citgo’s Predomination Requirement Threatens to Undermine Title VII Enforcement, Chap. 4 in Employment Class and Collective Actions (Estreicher, Samuel & Sherwyn, D., Editors, 2009 Kluwer Law International), reprinted from 26 Berkeley J. Emp. & Lab. Law 405 (2005) and available at http://ssrn.com/abstract=1484761

Investor-State Arbitrators\u27 Duties to Non-Parties

The notion that arbitrators owe duties to the parties in investor-state disputes is familiar. This article explores less-trodden terrain. It argues that, notwithstanding the party-centric norms of arbitration, investment arbitrators also owe duties to non-parties. It begins by establishing a beachhead – a clear example of a duty to a non-party, as a proof of concept – before moving into rougher territory. The article catalogs and surveys various duties owed to non-parties, discussing the nature of these duties and how they are enforced. Finally, the article shows that recognizing duties to non-parties both informs a proper understanding of the investment arbitration system and may help improve that system