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North Carolina Journal of International Law and Commercial Regulation

Blog Archive: February 2012

Is Compulsory Mediation a Violation of the Right Guaranteed by Article 6 of the European Convention?

In her recent presentation at the Symposium held by the North Carolina Journal of International Law and Commercial Regulation and the North Carolina Journal of Law and Technology, Professor Jacqueline Nolan-Haley offered a cautious endorsement of the E.U. directive requiring all member states to implement mediation programs. She spoke of the success the directive has had in requiring Member States’ citizens to engage in mandatory mediation for cross-border commercial disputes, while at the same time questioning the directive’s efficacy if it were to be extended beyond this frame. Professor Nolan-Haley specifically addressed the pivotal U.K. case of Halsey v. Milton Keynes General NHS Trust, noting the unique perspective taken by the Court of Appeal. I agree with the Professor’s assertion that mandating mediation will strip the process of its voluntary nature and amicability, making it “the new arbitration.” However, I was disappointed that Professor Nolan-Haley did not take a more clear position regarding the question of whether this mandated mediation is a violation of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECtHR).


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No Comments | Posted by Rachel F. Braden on Mon. February 27, 2012 9:21 AM
Categories: Disputes from Arbitration Agreements

International Class Arbitration - Flourishing or Floundering?

In her discussion of her forthcoming paper “Resolving Mass Legal Disputes Through Class Arbitration: The United States and Canada Compared,” Professor S.I. Strong explained that despite setbacks to class arbitration in two recent Supreme Court cases, class arbitration is not dead in the United States. Rather, Strong suggests, forthcoming cases will likely test the applicatory boundaries and narrowly construe previously announced limitations on class arbitration.


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No Comments | Posted by Kevin G. Schroeder on Mon. February 27, 2012 9:01 AM
Categories: Disputes from Arbitration Agreements

Professor Rosen on Foreign Direct Investment: It's Not the End of the World

In 2012, financial crises abound, creating a worldwide problem and fueling the fear of an alleged fast-approaching Armageddon. Professor Ken Rosen of the University of Alabama School of Law argues one solution to our international contagion comes from, ironically, the source of the problem: the inexorable interdependence of the world’s nations. Specifically, Rosen suggests foreign direct investment [FDI] can ameliorate the global economic downturn. In his presentation, “Collaboration and Indirect Support of Foreign Direct Investment”, he argued the importance of FDI in growing the world’s suffering economy. Further, because our current framework for fostering FDI is flawed, he suggests a remodeled international approach that complies with global accounting standards and builds trust between nations.


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No Comments | Posted by Kathleen D. Bradshaw on Mon. February 27, 2012 8:58 AM
Categories: Investment in Foreign Markets

ICANN: Uncertainty to the Right of the Dot

The announcement by ICANN (Internet Corporation of Assigned Names and Numbers) of the public’s ability to apply for personalized top-level domain names (gTLDs) caused uncertainty for companies in the Internet landscape with regard to trademark protection. The looming unknown might provide the flood of graduating law students a foray into an exciting new world of Intellectual Property issues to the right of the dot. Trevor Schmidt, an associate at Moore & Van Allen PPLC, laid the foundation of Internet domains and hinted at issues that will arise from the roll-out of ICANN’s gTLD application process.


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No Comments | Posted by Elizabeth M. Hodge on Sun. February 26, 2012 12:17 PM
Categories: Trademark Law Internationally

Your Fame in Spain is Mainly Not Germaine

Professor Leaffer advocates that the United States (U.S.) should amend its federal Trademark (TM) law to grant “well-known” marks from foreign countries an exception to the territoriality principle. To make his point, Leaffer examines two leading TM cases, Grupo Gigante SA De CV v. Dallo & Co., Inc., and ITC Ltd. v. Punchgini, Inc., sitting on opposite sides of this “territoriality” issue. Leaffer proposes statutorily adopting Article 6bis of the Paris Convention. This would allow U.S. TM protection for “well-known” foreign marks not currently “in use” in the U.S.


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No Comments | Posted by Daniel R. Hinson (Dan) on Sun. February 26, 2012 12:13 PM
Categories: Trademark Law Internationally

ICANN and Domain Name Dispute Resolution

In his presentation on January 27, Professor Kesan returned to a topic he has written about twice before: ICANN and its domain name dispute resolution process, UDRP. His newest foray into this subject takes a step beyond ICANN and UDRP to examine other ways parties to international domain name disputes resolve their issues. After selecting 138 countries to research, he found that there are three main dispute resolution mechanisms: ICANN’s UDRP, private arbitration systems that closely follow the UDRP, and domestic courts systems. This research brought up some very interesting correlations, namely that the status of a country’s economy was often determinative of the dispute resolution system it adopted. Countries with developed economies, or less developed countries with sophisticated IT sectors like India, mostly used private dispute resolution systems while developing countries used either UDRP or their own domestic court systems. Further, the system of choice for developing countries often came down to the countries’ desire to lure in foreign investors, with countries seeking foreign investors using UDRP’s protocols and countries still on AOL using their own domestic court systems.


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No Comments | Posted by Elliot L. Franklin on Sun. February 26, 2012 12:09 PM
Categories: Trademark Law Internationally

Modernizing the New York Convention

Professor Robert Bird discussed the unclear future of arbitration awards after a primary jurisdiction of injury vacates the award and refuses its enforcement. The Washington D.C. Circuit Court refused to enforce the arbitration award in Termorio due to fundamental and policy considerations. In contrast, the court in Chromalloy enforced the arbitration award in the enforcing jurisdiction. Neither of these cases is widely accepted, leaving a wide ambiguity on this topic. There remains a strong need for a coherent rule of law so that a party does not choose a jurisdiction based on its enforcement law. For example, French law gives no deference to the first jurisdiction that set the arbitration award aside. This causes vast unpredictability and defeats the purpose of arbitration: clear recovery in the event of party conflict.


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No Comments | Posted by Patricia I. Fernandez on Sun. February 26, 2012 12:04 PM
Categories: Disputes from Arbitration Agreements

Response to Professor Christoph Henkel

For the panel discussion “Disputes Arising from Arbitration Agreements,” Professor Christoph Henkel addressed the problem of confidentiality in international commercial arbitration, gave illustrations of how international jurisdictions approach confidentiality differently, and offered a solution for the international community’s uncertainty towards confidentiality. Henkel’s recommendations did not, however, address the practical limitations of relying solely on protective drafting. This solution inevitably results in increased transactional costs, and creates further uncertainty. Furthermore, drafting for confidentiality itself could hinder potential litigation.


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No Comments | Posted by Rebecca Y. Yang on Sun. February 26, 2012 12:00 PM
Categories: Disputes from Arbitration Agreements

Bilateral Investment Treaties and Foreign Direct Investment Arbitration: Analyzing Jason Yackee’s Solutions to Franchising in an International Setting

In the brave new world of dispute settlements between investors and states, international arbitration has emerged as a means to protect foreign direct investment (FDI). It is important that foreign direct investment is able to flow freely across borders and that a proper dispute mechanism is available to ensure fair and equitable treatment for all parties involved. However, the inadequacies of foreign legal systems, and the possibility of host state interference in the investor’s property rights, have created a greater desire for investors to seek a means to protect their investments. Jason Yackee, a Professor at the University of Wisconsin School of Law, has addressed this risk that direct investment abroad poses to its investors and has encouraged bilateral investment treaties (BITs) and investment treaty arbitration as a means for protecting their investments.


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No Comments | Posted by Gideon A. Kaplan on Sun. February 26, 2012 11:55 AM
Categories: Investment in Foreign Markets

A Response to Criticism of International Arbitration

Timothy Holbrook, Professor of Law at Emory University, acknowledged the advantages of international arbitration but challenged the notion that arbitration will always be the best method of resolution. Holbrook cited cost savings and efficiency as advantages of international arbitration. He also noted the necessity of providing an international forum, as all corporations have essentially become international through the use of the Internet.


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No Comments | Posted by Elizabeth J. Ireland on Sun. February 26, 2012 11:52 AM
Categories: International Dispute Resolution
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