International Arbitration and the Republic of Colombia: Commercial, Comparative and Constitutional Concerns From a U.S. Perspective

This article undertakes the first comparative analysis of Colombian arbitration law in English, setting Colombian statutory and case law side by side with international and U.S. law to provide U.S. parties with the information they need to (1) evaluate the risks and benefits associated with entering into an arbitration agreement with a Colombian party and (2) establish the kinds of procedures needed to provide optimal protection of the arbitral process and any resulting award. Not only does this research discuss important comparative and commercial matters, it also considers how a unique type of constitutional challenge - the acción de tutela - affects arbitration law in Colombia

Book Review: The Business of Judging

Lord Bingham of Cornhill is no stranger to the business of judging. Senior Lord of Appeal in Ordinary, former Lord Chief Justice of England, former Master of the Rolls, he has been sitting on the bench in one capacity or another for the last twenty years - twenty-five if one counts his tenure as a recorder. Although he began his career at the bar in 1959 as a commercial and civil lawyer, his appointment in 1996 as Lord Chief Justice placed him at the apex of the criminal justice system. In becoming senior Law Lord, Lord Bingham has expanded his purview yet again, thus enabling him to write about all aspects of the law from a unique position of knowledge and experience

Book Review: We the People: The Fourteenth Amendment and the Supreme Court

Never one to shirk a challenge, Michael Perry has taken on the difficult task of investigating whether, as charged by a number of prominent social and legal commentators, the modern Supreme Court, in the name of the Fourteenth Amendment [to the US Constitution], [has] usurped prerogatives and made choices that properly belong to the electorally accountable representatives of the American people, and if so, to what extent (p. 8). Perry makes no attempt to address every facet of Fourteenth Amendment doctrine, but instead focuses his discussion on some of the most controversial topics: racial segregation, affirmative action, discrimination on the basis of sex and sexuality, abortion and physician-assisted suicide

Can International Law Trump Trump\u27s Immigration Agenda: Protecting Individual Rights through Procedural Jus Cogens

Donald Trump\u27s approach to immigration has been revolutionary, to say the least. In his short tenure in office, his policies banning travel of individuals from certain Muslim countries have been taken to the United States Supreme Court on two separate occasions, and his most recent technique of separating children from their parents at the border has already spawned litigation. His boldest proposal yet, however, involves the widespread denial of procedural rights to immigrants.In his words, [w]hen somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came [sic]. This Essay considers the applicability of certain peremptory norms commonly referred to as jus cogens to the Administration\u27s recent calls to eliminate immigration hearings. The norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority. Because [j]us cogens norms are often thought to be equivalent to constitutional principles of international law ... , they are often referred to as an international bill of rights, or . .. are said to constitute the highest in a norms hierarchy. The discussion begins in Section II by defining traditional and procedural elements of jus cogens, followed by an analysis in Section III of the content of procedural jus cogens. Next, Section IV considers how these principles might operate with respect to the Administration\u27s proposals to eliminate immigration hearings. Notably, the recommendations outlined herein may apply equally to other violations of procedural law, both in the immigration context and beyond. Section V then concludes the discussion with certain forward-looking observations

Cross-Border Collective Redress in the European Union: Constitutional Rights in the Face of the Brussels I Regulation

This article considers the various issues associated with the creation of a system of collective relief in a region that has traditionally been hostile to the provision of large-scale private litigation. In so doing, the discussion focuses on the clash between certain constitutional rights relating to the ability of the plaintiff to choose the time, place and manner of bringing suit and the European Union’s primary form of legislation concerning cross-border procedure, Council Regulation 44/2001 on jurisdiction and on recognition and enforcement of civil and commercial judgments, commonly known as the Brussels I Regulation

Enforcing Class Arbitration in the International Sphere: Due Process and Public Policy Concerns

This article appears to be the first to address the unique issues relating to international class arbitration and to discuss the status of class arbitration in other countries. To date, the only published articles on class arbitration - a dispute resolution mechanism that has been in existence in the United States since the early 1980s - have focused on domestic arbitration. However, with a number of known international class arbitrations in progress, all seated in the United States, questions concerning the transnational legitimacy of the class arbitration process and the ability to enforce class awards under the New York Convention - the primary international enforcement mechanism for arbitral awards - will soon arise. This article takes the view that awards arising out of properly conducted class arbitrations should be treated no differently than those arising out of other sorts of arbitration and argues that the presumption of enforceability under the New York Convention should be applied to class awards to the same extent as it is applied to bilateral awards

Religious Rights in Historical, Theoretical and International Context: Hobby Lobby as a Jurisprudential Anomaly

The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.This Article undertakes precisely that analysis by setting Hobby Lobby into a wider historical, theoretical and international setting so as to determine whether the decision to grant a commercial corporation a religious accommodation is consistent with the rationales underlying religious rights. The discussion considers the work of key theorists in this field while also contemplating relevant principles of international and comparative constitutional law. In so doing, the Article seeks to determine whether the Supreme Court has remained true to established principles of religious liberty or whether Hobby Lobby has made the United States an outlier in this important field of law

Realizing Rationality: An Empirical Assessment of International Commercial Mediation

For decades, parties, practitioners and policymakers have believed arbitration to be the best if not only realistic means of resolving cross-border business disputes. However, the hegemony of international commercial and investment arbitration is currently being challenged in light of rising concerns about increasing formalism in arbitration. As a result, the international community has sought to identify other ways of resolving these types of complex commercial matters, with mediation reflecting the most viable option. Numerous public and private entities have launched initiatives to encourage mediation in international commercial and investment disputes, and the United Nations Commission on International Trade Law (UNCITRAL) has taken up a proposal from the U.S. Government to consider whether a new treaty involving international commercial mediation is warranted. This Article provides the national and international legal communities with critical information about the world\u27s fastest growing dispute resolution device. As the first empirical study dedicated to this particular issue, this Article lays the groundwork for future scholarship and policy work in the area of international commercial and investment mediation. Furthermore, by (dis)proving a number of key theories regarding mediation, the discussion revolutionizes the way this process is conceptualized by legal academics. The broad scope of the analysis makes this material relevant not only to readers in the United States but also to audiences around the world

Book Review: Divergent Paths: The Academy and the Judiciary

Judge Richard Posner\u27s most recent book, Divergent Paths: The Academy and the Judiciary touches on a number of important issues, but the most revolutionary element involves Judge Posner\u27s discussion of how the legal academy can assist with the education of current and future judges