Welsh-Dispute Resolution: Comparative & Int’l Perspectives

About the Course. Business and commerce are now almost inevitably global. As a result, when conflicts arise, they too have global ramifications. What processes will be used to resolve these conflicts? Whose processes will be used? In what ways are the processes used in the United States similar to and different from the processes used elsewhere? Do the procedural differences matter?

This class will try to answer these questions and introduce you to the continuum of dispute resolution processes now being used to resolve disputes in the United States and in other nations. Through the readings, lectures, class discussion, videotapes, and some simulations, we will compare and contrast different nations’ approaches to civil litigation, domestic arbitration, negotiation and mediation. I hope that you will find the course useful, thought-provoking and fun.

I have several objectives for this course. I expect that by the end of the course, you will:

While you will be exposed to techniques used in civil litigation, arbitration, negotiation and mediation, this will not be a skills training course.

Completion of the assigned reading will be essential to effective participation in class discussion (see Class Participation/Contribution), as well as satisfactory performance on the final examination.

Availability Outside Class. I have no specific office hours but can probably meet after our class session. For extended discussion, I hope you will feel free to schedule an appointment with me. My telephone number is 055-35-21-51.

Assignments. The reading assignments below are numbered. Each assignment is tentative and may be changed by prior announcement in class. Unless I clearly say otherwise, assume that we will cover the next assignment in the next class.

Evaluation. Your final grade will be based primarily on your performance on the final exam. However, I also will add or subtract up to five points from this grade based upon my evaluation of your class participation/contribution. Excessive absences, tardiness and/or lack of preparation will result in a reduction in your final grade.

Class Participation/Contribution. Each of you will be expected to lead class discussion (as part of a 4 or 5-person team) at some point during the course. I encourage imaginative presentations or formats (e.g., roleplay in front of class followed by debriefing; game show; hypothetical and variations) that engage us in discussion, rather than bland “talking head” summaries of the materials. I expect that each presentation will last 30-50 minutes. In the first class, I will distribute a sign-up sheet listing available assignments. Your performance in leading class discussion will be a major component of my evaluation of your class participation/contribution. However, I also will consider the quality of your contributions and insights throughout the course. A quality comment usually possesses one or more of the following properties:

Your regular and punctual class attendance, as well as your preparation for class, will be essential. Your participation in the law school curriculum should prepare you for your professional life as a lawyer, in which you will need to meet your obligations with competence, integrity and responsibility.

Final Examination. The final examination will be a two-hour examination given on June 27. I will provide more details as the end of the course approaches.

Overarching Issues: Jurisdiction and Expectations of Justice Systems
1	Introduction to the Course and Continuum of Dispute Resolution Procedures, Jurisdictional Issues, and Global Expectations of Justice Systems	Compilation, 1-31 Recommended but not required: 32-37 (will be handed out in class with other readings)
Comparing Civil Litigation Systems and Procedures
2	Comparing the Adversarial/Common Law System to the Inquisitorial/Civil Law System	Compilation, 38-78
Comparing Domestic Arbitration Procedures and Law
3	Arbitration in the U.S.: Uses, Selection of Arbitrators, Impartiality, Conduct of Proceeding	Compilation, 79-125
4	Arbitration in the U.S.: Concepts of Separability, Application of Law, Arbitrability, Enforcement of Mandatory Arbitration Clauses	Compilation, 126-167
5	Arbitration in France and Other Civil Law Nations	Compilation, 168-180
6	Arbitration in England, Other Nations’ Enforcement of Mandatory Arbitration Clauses	Compilation, 181-205
7	Guest Lecture: “Transnational Litigation,” Nicolo Trocker, Professor, University of Florence School of Law and member of the University of Florence Institute of Comparative Law	Compilation, 38-78, 170-180 (review)
8	Review, Comparing Domestic Arbitration in the U.S. and Other Nations	Compilation, 79-205
Introduction to International Commercial Arbitration (UNCITRAL, Rome)
9	Guest Lecture: “Introduction to International Commercial Arbitration,” Andrea Bandini, Professor of Law, Luiss University, Rome Law School	Compilation, 353-378, 379-392
10	Guest Lecture: Professor Andrea Bandini	Compilation, 353-378, 379-392 (review)
Comparing Negotiation Approaches and Goals
11	The Place of Negotiation in U.S. Civil Litigation, Competing Theories of Negotiation	Compilation, 206-218
12	Cross-Cultural Dimensions of Negotiation	Compilation, 219-247
Comparing Domestic Mediation Procedures and Law
13	Mediation in the U.S.: Sources, Format, Application of Law	Compilation, 248-289
14	Mediation in the U.S.: Mediator Approaches	Compilation, 290-316
15	Guest Lecture: “Comparing Italian and U.S. Approaches to Negotiation, Introduction to Conciliation/Mediation in Italy,” Andrea Davis, U.S. attorney with commercial law practice in Florence	Compilation, 219-247 (review)
16	Domestic Mediation in Other Nations	Compilation, 317-333
International Arbitration
17	International Commercial Arbitration: U.S. Courts and the New York Convention	Compilation, 334-352, 353-378 (review)
18	Arbitration Under International Treaties	Compilation, 383-401

	Page
Overarching Issues
Jurisdiction Marcus, Redish and Sherman, Civil Procedure, A Modern Approach
• Minimum Contacts--Asahi and Notes	1
• General Jurisdiction--Helicopteros and Notes	11
Carbonneau, Cases and Materials on the Law and Practice of Arbitration • Forum Selection Clauses–The Bremen and Notes	19

Expectations of Justice Systems
Welsh, Making Deals in Court-Connected Mediation: What’s Justice Got To Do With It? (Understanding Procedural Justice)	24
Zuckerman, Civil Justice in Crisis • Zuckerman, Justice in Crisis: Comparative Dimensions of Civil Procedure [TO BE DISTRIBUTED ON SITE]	32

Comparing Civil Litigation Systems and Procedures
The Adversarial and Common Law System of the United States Marcus, Redish and Sherman, Civil Procedure, A Modern Approach
• Band’s Refuse Removal and Notes	38
• Fuller, The Problems of Jurisprudence	48

Inquisitorial and Civil Law Systems of Other Nations Marcus, Redish and Sherman, Civil Procedure, A Modern Approach
• Zeidler, Evaluation of the Adversary System	49
• Frankel, The Search for Truth, and Notes	50
Langbein, The German Advantage in Civil Procedure	54
Zuckerman, Civil Justice in Crisis
• Chiarloni, Civil Justice and Its Paradoxes: An Italian Perspective [TO BE DISTRIBUTED ON SITE]	64

Comparing Domestic Arbitration Procedures and Law
Domestic Arbitration in the United States Rau, Sherman and Peppett, Processes of Dispute Resolution
• Some Frequent Uses of Arbitration: Commercial Arbitration and Arbitration of Consumer Disputes	79
• The Arbitration Proceeding–Selection of Arbitrators; Impartiality; Conduct of the Proceeding	89
• Separability of the Arbitration Clause–Prima Paint and Notes	126
• Arbitral Decision-Making and Legal “Rules”	136
• Public Policy and Arbitrability–Mitsubishi and Notes	141
Sternlight, Is the U.S. Out on a Limb? Comparing the U.S. Approach to Mandatory Consumer and Employment Arbitration to That of the Rest of the World (The Mandatory Arbitration Debate in the United States)	156
Federal Arbitration Act, Chapter 1	162

Domestic Arbitration in Other Nations Carbonneau, Cases and Materials on the Law and Practice of Arbitration
• A Civil Law Approach to Arbitration: The Example of France	168
Frommel and Rider, Conflicting Legal Cultures in Commercial Arbitration
• Borris, The Reconciliation of Conflicts Between Common Law and Civil Law Principles in the Arbitration Process [TO BE DISTRIBUTED ON SITE]	170
Carbonneau, Cases and Materials on the Law and Practice of Arbitration
• The English Statutory Law on Arbitration	181
• UK Arbitration Act 1996	184
• Arbitration in Other Legal Systems: Germany	194
Sternlight, Is the U.S. Out on a Limb? Comparing the U.S. Approach to Mandatory Consumer and Employment Arbitration to That of the Rest of the World (Mandatory Arbitration Outside the United States)	197

Comparing Negotiation Approaches and Goals
The Place of Settlement in Civil Litigation in the United States The Vanishing Trial	206

Different Cultures’ Assumptions Regarding the Approaches and Goals of Negotiation
Wiggins and Lowry, Negotiation and Settlement Advocacy: A Book of Readings
• The Negotiation Process–General Observations	209
• Gulliver, Disputes and Negotiations	210
• Sander and Rubin, The Janus Quality of Negotiation	212
• Gifford, A Context-Based Theory of Strategy Selection in Legal Negotiation	213
• Gifford, Legal Negotiation: Theory and Applications	214
• Murray, Understanding Competing Theories of Negotiation	215
• Nyerges, Ten Commandments for a Negotiator	216
Rau, Sherman and Peppett, Processes of Dispute Resolution
• Demystifying Cross-Cultural Dimensions	219
• Salacuse, Making Global Deals	226
Brett, Negotiating Globally
• Why Culture Affects Negotiation Strategy	241
• Culture and Negotiation Strategy: A Complex Link	245
• Excellent Cross-Cultural Deal Makers	246

Comparing Domestic Mediation Procedures and Law
Domestic Mediation in the United States Rau, Sherman and Peppett, Dispute Resolution
• Sources of Contemporary Mediation	248
• Mediation Process–Format of Classical Mediation; Bargaining; Rule of Law	258
• Mediator Approaches and Orientations	290
Welsh, Making Deals in Court-Connected Mediation: What’s Justice Got To Do With It?	308
Uniform Mediation Act	312

Domestic Mediation in Other Nations
Alexander, Global Trends in Mediation: England, Scotland, Wales, Austria and Denmark	317
UNCITRAL Model Law on International Commercial Conciliation	329

International Arbitration
International Commercial Arbitration Carbonneau, Cases and Materials on the Law and Practice of Arbitration
• An Introduction to International Commercial Arbitration	334
• The New York Convention	336
• Federal Arbitration Act, Chapters 2 and 3	338
• U.S. Courts and the New York Convention	346
Carbonneau, The Ballad of Transborder Arbitration	353
Frommel and Rider, Conflicting Legal Cultures in Commercial Arbitration
• Lowenfeld, International Arbitration as Omelette: What Goes into the Mix [TO BE DISTRIBUTED ON SITE]	372
UNCITRAL Model Law on International Commercial Arbitration	379

International Treaties Carbonneau, Cases and Materials on the Law and Practice of Arbitration
• Dispute Resolution under GATT and NAFTA	393
North American Free Trade Agreement	395
Carbonneau, The Ballad of Transborder Arbitration	399

Copyright 2005 Nancy Welsh. Teachers are free to copy these materials for educational use in their courses only, provided that appropriate acknowledgment of the author is made. For permission to use these materials for any other purpose, contact the author.