DISPUTE RESOLUTION: COMPARATIVE & INTERNATIONAL PERSPECTIVES
Syllabus

Summer 2003
Prof. Welsh

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.

Materials. The materials for this course are:

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.

READING ASSIGNMENTS

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


DISPUTE RESOLUTION: COMPARATIVE AND INTERNATIONAL PERSPECTIVES

Table of Contents

  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.