Book Reviews by James B. Boskey
Online Reviews of Dispute Resolution Literature from The Alternative Newsletter - November 1998
See other Boskey reviews written between 1997 and 1999.
The following book review was contributed by Nora Feminina of the Dispute Resolution Program at Nova Southeastern who specializes in the implementation of mediation program in the Spanish speaking nations in Central and South America.
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Caivano, Roque, Gobbi, Marcello, and Padilla, Roberto E.,
Negociación y Mediación. Instrumentos Apropiados para la Abogacia
Moderna Editorial Ad-Hoc, Buenos Aires (1997)
Review by Nora Feminina, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
This book is a deep review of the new requirements for an efficient lawyering, from the point of view of a constant integration between concepts provided by mainly US and Latin American authors. It not only does attempt to provide alternative avenues for the shortcomings of the traditional justice system, unable to deliver the solutions that society needs. It goes beyond that, providing a redefinition of the professional competency of the lawyer. Now, beyond the process to restore his clients' rights through the court system, a lawyer can and should offer the evaluation of different means for solving clients' problems in civil society. In this way the book does an excellent presentation of theories of conflict and the process of negotiation, comparing different sources and offering an original synthesis. Equally important is the chapter dedicated to mediation, which is a valuable integration of the experiences and propositions of the main authors of the field. The book concludes with a through evaluation of the application of Argentine Law 24,573, about pre-judiciary mediation, with a detailed examination of different circumstances and cases where it has been applied. The same procedure has been followed in the last chapter, where the issue is Arbitration applied to conflicts in the work place, ruled by Argentine Law 24,635. The book concludes with the valuable addition of the texts of these laws as Annexes 2 to 6, being Annex 1 a timely translation of ethics codes provided by SPIDER, AAA and ABA.
Going beyond the initial objective of this book, we believe that by framing the issues discussed under a cross-cultural understanding, it would help understand better some approaches that, because being originated in different cultures could appear too theoretical or difficult to apply in Latin cultures. And, in this process, propose more culture-sensitive recommendations for improvement of the practice of lawyering in Latin America.
The following review was contributed by Michael Chapman,( ea@interarb.com) the editor of European Arbitration, the premier on-line dispute resolution newsletter (available through email or on the web at http://idun.unl.ac.uk/~elm8baylyg/ea.html) and is taken from that newsletter.
Aitken, Neil and Spragge, Charles, A Guide to Arbitration and
Litigation in Central and Eastern Europe, Suchen Debling,
Cameron McKenna, 160 Aldersgate Street, London EC1A 4DD, England
(144pp £9.99 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
A refreshing new book, in a refreshing new style (and at a refreshing price). Cameron McKenna's are one of the big law practices in the City (London). Two of their senior staff have set out to produce a guide to dispute resolution options in Central and Eastern Europe. The geographic scope is limited, but for good reason. CMcK have offices in Prague, Budapest, Warsaw and Moscow. The book confines itself to areas where the practice has obvious expertise. The style is simple: "The job of business lawyers is to make deals work. By ensuring that the contract makes sensible provision for the resolution of disputes, deals have a better chance of success." But readability is not gained at the expense of becoming trite. Most noteworthy to me, the authors set out in a mere four pages to compare civil and common law systems. The subject could easily have been ignored and the country-by-country analysis begun. But what, to my mind, is a lucid explanation is given. This, without on the one hand trying to make the situation black and white, merely to allow tabulation of differences ("In reality, the distinction is far from clear- cut and most modern legal systems contain elements of both styles."), and yet still coming out with some sound practical points. The country sections follow a similarly informative style (and occupy most of the book, pages 26-140). Firstly the background to the current legal system is discussed in historical context. Then the current legal system is described. Thirdly the procedures and systems for arbitration within that country are described. Lastly a section details the permanent arbitration bodies that exist in each country.<BR>
This journal has commented previously on the tendency, either from sloth, from over- work, or just perhaps from the feeling that someone might steal the crust from one's mouth ... the tendency by some senior practitioners (let alone institutions) to not pass their knowledge on to the next generation. This book is a refreshing change. That the same firm are talking of a companion volume on Western Europe is even more intriguing.
We now return to my regular reviews:
Bergman, Edward J. and Bickerman, John G., Court-Annexed
Mediation: A Critical Perspective on Selected State and Federal
Programs, Pike & Fisher, 4600 East-West Highway, Suite 200,
Bethesda, MD 20814-1438 (396pp $75 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
If you need to know what is happening in court-annexed dispute resolution around the United States, there is no better resource available than this new book published by the Dispute Resolution Section of the American Bar Association in conjunction with Pike and Fischer, who are also the publishers of ADR Reports. Until tis book, most of the studies of court-annexed dispute resolution have either been formal evaluations of single programs undertaken by the court system in which the program is located or paper studies, which have reported on the published rules and intentions of the programs rather than what is occuring on the ground. With Court-Annexed Mediation, we are offered, for the most part, a substantially more realistic cross-sectional view of what is actually happening in the courts.
After some brief introductory materials, the bulk of the book is made up of nine chapters, each, written by an experienced dispute resolver, describing in fair detail the nature of one court-based dispute resolution system. While several of the authors are, or have been, directly involved with the operation of the system described, most of them are independent dispute resolvers who work with, but are not directly responsible for, the systems that they present. Thus, the authors are able to be reasonably objective about the strengths and weaknesses of the programs, and their knowledge about dispute resolution systems is broadly enough based to recognize the features of the system they describe which are unique, whether effective or ineffective. Each author provides an overview of the dispute resolution processes used in the system in question, some sense of the effectiveness of the system, and comments on problems and opportunities that the system has faced and enjoyed. In addition, basic constituting documents, such as court rules and the like, are provided for each of the programs discussed.
The selection of programs to be considered hits most of the high points of court-annexed dispute resolution in the United States. Statewide programs in Florida, Texas, and Minnesota as well as the District of Columbia's Multi-Door program, clearly represent the strongest uniform state programs in the country. It might have been interesting, for comparison, to have looked at a diverse system like California or New York, but a report on such a system would have been far more difficult to prepare. Other programs included are the Federal Court programs in the District of Columbia and New Jersey (Mediation), the Michigan State and Federal Courts programs (Michigan Mediation which is really a form of early evaluation/non-binding arbitration often combined with mediation), and the Northern District of Oklahoma (settlement judge) and Western District of Missouri (early assessment) programs. Between them, the provide a wide ranging picture of many of the options available to the courts, and the appended documents will provide guidance for other court systems considering implementing similar programs.
Ed Bergman and John Bickerman have done an excellent job of editing the materials that they received from the individual authors. The chapters are generally consistent in structure and format without losing the individual tone of each author's presentation.
Alfini, James J. and Galton, Eric R., ADR Personalities and
Practice Tips, American Bar Association, Dispute Resolution
Section, 740 15th St. NW, Washington, DC 20005-1022. (272pp $45
(section members $35) 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
Probably the most common question I receive from attorneys about alternative dispute resolution is "How do I get a job as a dispute resolver or open a mediation/dispute resolution practice?" After warning the questioner not to give up their day job, I usually tell them that in most parts of the country there are few or no salaried jobs for dispute resolvers, and that opening a dispute resolution practice requires both substantial dispute resolution training and skill and the kind of entreprenurial skills and interests, the lack of which is often what is leading them to abandon the practice of law. For those who are not discouraged by this recitation, the problem of describing the nature of a dispute resolution practice or the way in which one can "break into the field" is much more difficult.
ADR Personalities and Practice Tips, edited by Jim Alfini and Eric Galton on behalf of the American Bar Association Section of Dispute Resolution, attempts to answer many of these questions by looking at a wide range of people who have "made it" in the ADR field. In individual chapters, twenty-three leading ADR practitioners each offer a brief description of how they entered the field and some of the best tips and techniques that they have to offer to newcomers.
The range of practictioners and backgrounds included is very broad. For most of them dispute resolution was a second or third career, after they had established themselves in some other profession. For many it was, almost, an accidental choice, clearly meeting their personal goals, but the opportunity was uncovered almost by chance a time when they were able to seek out a new opportunity. In addition to the wide range of backgrounds, one of the most interesting features is the range of settings and fields in which the presenters work. They range from those who are part of traditional law firms, to independent solo practitioners, to government employees. Many are active in the labor and employment areas, but others specialize in family, environmental, commercial and other classes of dispute, though most freely cross lines and are able to apply their skills to a full range of conflicts.
While this book will not fully answer the question posed at the beginning of this review, it will provide the person thinking about changing careers to dispute resolution with a realistic and informed understanding of some of the options that exist and will provide the experienced practitioner with ideas about ways to expand his or her practice.
Birkhoff, Juliana, Conflict Resolution Syllabi Anthology,
NIDR, the National Institute for Dispute Resolution, 1726 M St. NW,
Suite 500, Washington, DC 20036-4502 (375pp $50 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
The new edition of NIDR' collection of syllabi from conflict resolution courses around the country continues to grow in both size and usefulness. The new edition includes a bibliography of articles and books on teaching conflict resolution in higher education, a list of resources for information about conflict resolution, a list of sources for teaching videos, and, of course the syllabi themselves.
The syllabi are grouped by the type of course in which they are used. Categories are introductory undergraduate and graduate classes in conflict resolution, introductory law school classes, introductory classes in schools of planning, organizational development and education, classes in negotiation, mediation, conflict resolution theory, graduate electives, and law school seminars and clinics.
The syllabi vary widely in length and approach, but for anyone considering teaching a new or revised course in the area, or merely checking to make sure they have not overlooked something of importance in their own syllabus, this is an indispensable tool.
LeBaron, Michelle, McCandless, Erin, and Garon, Stephen,
Conflict and Culture: A Literature Review and Bibliography
(1992-1998 update), The Institute for Conflict Analysis and
Resolution, George Mason University, Fairfax, VA 22030-4444 (75pp
1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
When one thinks of comparative culture issues in dispute resolution, the first name that jumps out is that of Michelle LeBaron. Her research in the field has raised and addressed some of the most important questions relating to the effect of culture on disputing processes and on the applicability of models for resolution, and she has been consistently generous with her time, skill and knowledge assisting others in the field with need for her expertise.
About six years ago, while she was still at Uvic in Canada, Michelle published a 174 page annotated bibliography on conflict and culture which selected the most important and useful works in the field and introduced them with a useful survey of the extant state of knowledge. Since that time, a great deal has been published in the area, much of it by Prof. LeBaron herself, and this volume updates that prior work.
Again, LeBaron provides a short but pithy summary of recent developments in the literature and then offers list of articles and a few books from a wide range of sources published since the prior list, grouped by topic and clearly and effectively annotated, with a note as to the intended audience, a brief synopsis of the item and a list of cross-reference terms that are applicable.
Few of us are as widely read in the area of culture and conflict as LeBaron and she has again very generously made a useful resource available to the field at large.
Smock, David, ed., Private Peacemaking: USIP-Assisted
Peacemaking Projects of Nonprofit Organizations, United States
Institute for Peace, 1550 M St. NW, Suite 700, Washington, DC
20005-1708 (52pp 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
The United States Institute for Peace has been responsible, inter. alia., for supporting a wide range of projects in private peacemaking ranging from track two diplomacy through youth activities, to development and media projects. This volume reports on twelve of these programs with brief essays of three to five pages by persons associated with the projects on the lessons to be learned from them about private peacemaking.
The projects presented are important ones, taking place largely in high conflict settings and using the informality of non-governmental project convenors to allow contact to be made between private individuals and members of governments which could not take place under official auspices. The focus of most of the groups is on processes that encourage communication and, while direct connecion between these processes and specific reductions in hostities or peacemaking cannot be established, it is likely that several of the programs played important roles in hostility reduction and, in many cases, are continuing to have such effects.
Many of the reports of third party interventions that we receive tend to be desxcriptive rather than analytical. Despite their brevity, the analytical nature of the reports here makes them a valuable contribution to the literature on inter-ethnic and international conflicts.
Blake, Susan and Leahy, Susan, Negotiation - Inns of Court Law
School, Blackstones Press Ltd., Alaine Place, London W12 8AA,
England (198pp £12.95 1997) ISBN: 1854316710
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
Negotiation is one of a series of manuals published for use in the Bar Vocational Course offered by the Inns of Court Law School in England. The course is designed to "equip students with the practical skills ... they will need to start their legal professional careers".
The book is somewhat more "academic" than one might expect from its origins and purpose. The authors are well read in the negotiation literature and make good use of their knowledge, drawing on and referring students to other studies for the elaboration of ideas that they cannot spell out in a book of this size. The book's style is set by the series of which it is a part. The chapters are broken down into a series of numbered paragraphs and subparagraphs, with an attempt to keep the focus of each paragraph on a single idea. The writing is clear and direct and the ideas presented are clearly spelled out.
The thirteen substantive chapters provide a good overview of the negotiation process and the questions that an impending lawyer should be concerned to address. Legal negotiation is distinguished from general negotiation and the issues of representative negotiation are clearly dealt with. Separate chapters deal with strategy and style, tactics and techniques, cognitive influences on the process, and persuasion, each presenting the major theories and suggesting how they might be applied in an actual negotiation setting. Practical issues, including ethics, preparation for negotiation, conducting the negotiation, and recording and enforcing the agreement also are each dealt with at chapter length, and similar attention is paid to alternative dispute resolution as a frequently appropriate aid. Short sections deal with skill assessment, offer a sample exercise and a list of readings.
Overall this is a valuable introduction to the negotiation process for a law student or new lawyer. Its theoretical approach combined with some good simulation work would provide an excellent introduction to the development of negotiation skills.
Lebedun, Jean, Managing Workplace Conflict, AMI (American
Media Incorporated), 4900 University, West Des Moines, IA 50266-6769
(10399 $12.95 1998) ISBN: 1884926932
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
Managing Workplace Conflict is a part of AMI's "How to" series of short books designed to provide a useful introduction to the skills needed in some area of management. The books are clearly written with large print, effective use of color, and simple self-tests spread throughout to reemphasize the skills being taught. This volume follows that pattern.
The book is divided into six chapters beginning with a look at some of the ways in which conflict is often mismanaged and beginning to focus on the idea that conflict can provide positive as well as negative results. It continues by identifying four different types of conflict and distinguishing those that are over information and process from those that deal with purposes and values, the former being an intrinsic part of the creative process and the latter being potentially more difficult to address. The book then turns to conflict managment, suggesting the usefulness of planning for conflict and a straightforward four step process for conflict resolution., basically involving cooperative listening and mutual solution seeking. Finally attention is turned to dealing with times of high stress, and a brief case study is presented which provides the opportunity to develop a plan using the skills discussed.
This is not designed to be a tool for the sophisticated conflict resolver, but for the neophyte, especially in a management setting, it provides a useful set of basic conflict management information and tools.
Cornelius, Helena, The Gentle Revolution: Men and women at
Work - what goes wrong and how to fix it, The Conflict
Resolution Network, PO Box 1016, Chatswood, NSW 2057, Australia
(A$25 440pp 1998) ISBN: 0731805712
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
In The Gentle Revolution Helena Cornelius brings her conflict resolution skills, her experience and knowledge as a psychologist, and her understanding of communication from both a theoretical and a practical perspective together to offer a substantial rethinking of the way in which people collaborate and conflict in the workplace with substantial lessons for their relationships in other settings as well.
While the book is presented as focusing on the difference between men and women and their approach to the world, it in fact rejects the simplistic approach that there are inherent female and male characters and treats gender as a convenient proxy of limited accuracy for sets of characteristics that frequently cross gender lines. Although the equivilances are not exact, the character types that she presents parallel, in substantial respects, the Myers-Briggs types, which also tend to parallel gender without necessarily reflecting it.
Cornelius begins by examining the traditional character of the workplace and the change that is being brought about by the increasing presence of women at all levels. Many of those, mostly men, who have become comfortable with the traditional means of allocating authority, feel threatened, or at least challenged, by alternative styles and approaches, and many of the new entrants, especially women, feel uncomfortable with the traditional approaches and structures. As the anthropologists Robin Fox and Lionel Tiger pointed out some years ago in Men in Groups, women and men have traditionally formed different types of intra-gender liaisons, and those differences often create conflicts when gender lines are crossed in non-traditional settings. This can also be seen in Deborah Tannen's work on inter-gender (I wanted to write inter-species) communication.
Having established the existence of the problem, Cornelius then turns to four primary areas in which differences of approach are often reflective of gender characteristics. These are: Equality and Status, Agreement and Competition, Feeling and Actions-and-Objects Focus, and Interdependence and Autonomy. In each area she examines the "stumbling blocks and stepping stones" that lead to mutual misinterpretation or present difficulties for people in working together in an effective manner.
As in her earlier joint work (with Shoshona Faire) Everyone Can Win, Helena Cornelius writes exceptionally well, with elegance and outstanding clarity. She carefully balances theory and anecdotes to draw the reader into an understanding of the issues being presented and to show the way out of the dilemnas that the issues often pose. Her use of supplemental materials, such as self-tests and lists of ideas, is restrained and, because of that restraint, unusually effective. When such material is used, it clearly serves an important pedagogical function and is not, as in so many books today, simply covering a lack of authorial capacity.
In some respects this is a painful book to read. The reader may well recognize some of his or her less desirable characteristics and be forced to confront them. The pain is bearable, however, and the gain well worth the investment.
Lewicki, Roy J., Saunders, David M., and Minton, John, W.,
Negotiation: Readings, Exercises, and Cases (3d ed), Irwin/
McGraw Hill, PO Box 182604, Columbus, OH 43272 (760pp $42 1999)
Turek, Laura, Instructor's Manual to accompany Lewicki, Roy
J., Saunders, David M., and Minton, John, W., Negotiation: Readings,
Exercises, and Cases (3d ed), Irwin/McGraw Hill, PO Box 182604,
Columbus, OH 43272 (398pp 1999) ISBN: 0070593469
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
Whether or not you are using the Lewicki, Saunders and Minton textbook Negotiation or its abbreviated version Essentials of Negotiation, this collection of readings, exercises, and case studies is an extremely valuable adjunct for a course or self-teaching regime in negotiation and could, with some support, serve alone as the basis for such a course.
Following the outline of the text, this volume collects readings, typically three per chapter from a wide range of sources and authors which raise important questions about the negotiation issues that are discussed in the text. The range of style and viewpoints makes the selection of especial value, as it opens the door to a range of approaches and ways of thinking about negotiation problems and also provides the student with an idea of the kinds of research that may be appropriate to resolve some of the outstanding issues.
In addition to the readings, the book offers 27 exercises/simulations which can be used to teach various aspects of the negotiation process. Each of the exercises has an introduction, explanation of any advanced preparation needed, clear statement of procedure (including any documentation), and set of discussion questions. In addition eight case studies provide a basis for in depth analysis, and four questionnaires are included which can be used for self-analysis of preferred negotiation approaches.
Changes in the new edition include more emphasis on negotiation
in teams, more attention to the dynamics of "framing" and expanded
treatment of cognitive biases as well as reorganization to reflect
the new organization of the text and a new chapter on damage
control. This is a valuable collection that should be on the shelf
of anyone teaching in the negotiation field and would be of real
value to most students in the area as well.
The immense Instructor's Manual contains brief notes on the teaching of negotiation and structuring the course as well as supplemental resources available and sample course outlines. The bulk of the book is however taken up with the 27 exercises, 8 cases, and 4 questionnaires, with detailed analyses and copies of information materials to be duplicated for the student users as well as ideas about their use in teaching.
Petroska-Beska, Violeta, Let's Be Friends: A Workshop Report
and Trainer's Resource, available from Conflict Resolution
Center International, Suite 203, 204 37th St., Pittsburgh, PA
15201-1806 ($10)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
(The following review is reprinted from Conflict Resolution Notes published by Conflict Resolution Center International, Suite 203, 204 37th St., Pittsburgh, PA 15201-1806 and was written by Paul Wahrhaftig)
I recently received a most unusual little book Let's Be Friends edited by Violeta Petroska-Beska. The short books serves two functions simultaneously. It reports on a November 1997 inter-ethnic camp for teenagers in Macedonia. It is filled with the sort of happy, glossy, pictures that funders like to see. But more important to conflict resolution and intergroup trainers, it documents each training exercise used, briefly describes it and often evaluates the response to it.
Some of the areas the workshop activities covered are: Appreciating Differences, Human Rights, Decision-Making, Constructive Conflict Resolution, Civic Initiatives, etc.
The Civic Initiatives section taught the basic skills used to plan and establish civil organizations - such as NGOs or non-profit organizations. These skills had not been taught during the communist controlled years.
This is not a trainer's manual, but it can serve as an idea shee for experienced trainers. Readers may also find that many of the exercises have been borrowed from Western European and American sources. Here is an example from the conflict resolution section.
Tribes Game: Participants are randomly divided into four groups. Each group has to create an identity of a tribe by deciding upon the tribe values, symbols, and other important identity matters. After, they are forced to negotiate which of the four tribes will replace all others in order to same themselves and the Earth from destruction.
Hunter, Martin and Landau, Toby, The English Arbitration Act
1996: Text and Notes - English Français Deutsch Español, Kluwer
Law International, 675 Massachusetts Ave., Cambridge, MA 02139 ($108
368pp 1998) ISBN: 9041105859
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
The English Arbitration Act 1996: Text and Notes is a truly European book. In four languages, English, French, German and Spanish, it presents the text of the new English Arbitration Act with modest notes relating primarily to the sources for language in and cross-references of information between sections of the Act. The translations were each prepared by attorney/scholar native speakers of the language into which the translation was made, assuring that the translation is both accurate and catches the sense as well as the meaning of the law. While the difference in statutory structures between nations limits the usefulness of such direct translations in many areas, attorneys working in the international dispute resolution arena will usually be sufficiently familiar with these structures to be able to make use of such translations. They will also be useful in addressing courts outside the United Kingdom, who might otherwise have difficulty in obtaining the precise language of the statute where needed.
Van den Berg, Albert, ICCA Yearbook Commercial Arbitration
vXXII-1997, Kluwer Law International, 675 Massachusetts Ave.,
Cambridge, MA 02139 (1169pp $208 1997) ISBN: 9041104321
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
The Yearbook is an annual volume from the International Council for Commercial Arbitration (ICCA) which provides an extensive annual update on developments in international commercial arbitration from a global perspective. As the project has grown, it has been ammended from time to time. Thus the national reports, which formed the center of the Yearbook for many volumes, have been moved to the International Handbook on Commercial Arbitration, whose table of contents is included in this volume, and new material, such as the court decisions on the Panama convention and excerpts from decisions on the UNCITRAL Model Law continue to enliven the volume.
The book is divided into seven sections, several with major subsections. The first, a brief section, is the information on the national reports from the Handbook, while the second, far more substantial includes major arbitral awards from various institutions, primarily though not exclusively in Europe, selected court decisions on arbitration from Austria, Germany, India, and the US, and summaries of court decisions applying the UNCITRAL model law. The third part consists of two sections, the first collecting new and ammended arbitration rules from major arbitration institutions around the world, and the second providign a report of developments, including awards and decisions, from the Iran-US Claims Tribunal. Part four summarizes some recent developments in arbitration law and practice, primarily new legislation, while part five collects the court decisions interpreting the New York Convention, this being the largest section of the volume, as well as decisions under other arbitration conventions such as the European, Washington, and Panama conventions. Part six, which would normally contain important articles on arbitration, was omitted in this volume because of the abundance of case law, but part seven includes a detailed bibliography on arbitration for the year.
Hartwell, Geoffrey M. Beresford, ed., The Commercial Way to
Justice: The 1996 International Conference of the Chartered
Institute of Arbitators, Kluwer Law International, 675
Massachusetts Ave., Cambridge, MA 02139 (332pp $114 1997) ISBN:
904110478X
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
The Chartered Institute, for those who are unfamiliar with it, is the principle membership organization for arbitrators and advocates in commercial arbitration, both national and international, in the United Kingdom and has branches in Europe, the United States and the Far East. It combines the elements of an academic and a trade association, providing opportunities for the study and analysis of interesting questions about the arbitration process as well as advocating for improvement in both the legislative and administrative arenas. Members of the Institute were very influential in the development of the 1996 English Arbitration Act as they have been in the development of most of the international conventions affecting arbitration in recent decades.
This volume presents the papers from the conferences sponsored by the Institute held in Boston, MA in the United States in September 1996 and in Kent in June of the same year. The seventeen papers (fifteen from Boston and two from Kent) are collected into six chapters, with one chapter presenting the two from Kent and the others organized topically.
The introductory chapter presents, in addition to the conference opening, overview papers on the nature of the arbitral process by Geoffrey Hartwell and Arthur Harverd. International Arbitration is addressed in papers on the sources of law by Edward Chiasson, Evidence issues by Mark Huleatt-Jones and Robert Hunter, Marc Goldstein on the issues involved in constituting the tribunal for multi-party cases, and a look at U.S. practice by William Park. Also included in that chapter are papers on party autonomy and the decision to arbitrate by Douglas Jones, partiality of neutral party appointed arbitrators by Tom Arnold, and ethics by Nicolas Ulmer.
Alternative dispute resolution was addressed by Cecil Branson and Christopher Lake, the latter looking to lessons to be learned from various regions, and the role of women in international commerical arbitration and of expert witnesses in construction disputes were addressed respectively by Louise Barrington and Robert Greenstreet. Neil Kaplan summarized the proceedings.
The two papers included from the Kent conference were Ian Menzies on the 1996 Arbitration Bill and Julian Critchlow on power and the relationship between the arbitrator and the parties.
Overall the papers are remarkably strong and Geoffrey Hartwell has done a yeoman's job of editing them. The papers offer a great deal of information of both practical and theoretical interest and almost anyone in the dispute resolution field will find at least some materials of direct relevance to their interests.
Susskind, Lawrence, Moomaw, William, and Hill, Teresa,
Innovations in International Environmental Negotiation,
Program on Negotiation, Harvard Law School, Cambridge, MA 02108
(200pp $25 1997) ISBN: 1880711109
Susskind, Lawrence, Moomaw, William, and Hill, Teresa, Global
Environment: Negotiating Its Future, Program on Negotiation,
Harvard Law School, Cambridge, MA 02108 (140pp $25 1997) ISBN:
1880711117
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
These two volumes are the sixth and seventh in the series collecting papers addressing transboundary environmental issues in a negotiation context. The papers are derived from a graduate seminar on International Environmental Negotiations offered jointly by the Fletcher School at Tufts and the Department of Urban Stuies at MIT with the cooperation of the Program on Negotiation at Harvard Law School. The students in the course are generally from a wide range of countries and often have substantial experience in international environmental work, and the papers are, as one would expect from such background, generally of excellent quality and real value. Often the students bring substantial information about the practice of environmental law and related issues in an international context that is not available elsewhere.
The first volume, Innovations in International Environmental Negotiation, includes thirteen papers presented in two sections, The Global Commons and Regional and Global Arragements. In the first section the papers describe and discuss: A Trade Cooperative for Global Forestry Management, conservation of transboundary fish stocks, regional sustainable development areas, expertise and desertification, the Global Environmental Facility, two papers on technology transfer - dealing with the intellectual property question and trade linkages, and a proposal for a treaty on environmental right to know. The second section papers use the Antarctic treaty system as a model for environmental management, examine the "Turbot War", and look at various enforcement questions including the role of UNSCD, coordinated corporate action, and the place of treaties in the domestic legal system.
The second volume, Global Environment: Negotiating Its Future, presents nine papers in three sections: The Future of Environmental Agreements, Rethinking Regional Agreements, and Implementation of Global and Regional Agreements. Despite the section titles, the papers range quite broadly as in the earlier volumes. The first section consists of three papers, beginning with an effort to define "the Common Heritage of Mankind" a term which has moved far beyond its origins as a description (wishful) of the seabed, and looks at the Global Nitrogen Initiative and the Treaty on Renewable Energy. The second offers two paper on regional approaches, the first looking at Hidrovia and Mercosur and the second at freight transport in Europe. Finally, the third section includes four quite different papers dealing with, the role of information technology in empowering Eastern European NGOs in regional negotiations, decentralization of the Global Environmental Facility, the role of science and economics in environmental negotiations, and a look at joint implementation.
Overall the papers are well written and offer a wide range of useful information on recent developments in the environmental arena.
Derains, Yves and Schwartz, Eric, A Guide to the New ICC Rules
of Arbitration, Kluwer Law International, 675 Massachusetts
Ave., Cambridge, MA 02139 (493pp $135 1998) ISBN: 9041105956
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
The ICC International Court of Arbitration is one of, if not the, premier administrators of international commercial arbitration. Founded in 1923 as part of the movement for the development of alternatives to litigation, it has probably the largest purely international docket of cases of any adminstrative body, and its rules and procedures are generally defining of the "proper" way of conducting such a proceeding. Originally largely European in orientation, it has now expanded to the point of having members in 150 nations and National Committees in 60.
The ICC rules, which were originally published in 1922, have been periodically revised since that time. The current revision involves some substantial changes, but largely maintains the basic structure which has existed. Amongst the changes are an increase in the administrative authority of the Secretary-General to deal with prehearing issues rather than awaiting the action of the Court, clarificaton of the authority of the Court to accept an arbitration that is not international in character, and many procedural clarifications.
Derains and Schwartz, in this volume, provide a detailed commentary on the rules focusing on the changes that have been implemented, but providing a detailed analysis of the unchanged rules as well. Following the rules, article by article, they state the language of the rule, comment on changes from prior versions, and discuss practice issue that may arise under the rules, citing supporting or contradictory authority where appropriate. In addition appendices provide forms, official comments, statistics, and related materials which may be useful.
Although I am generally somewhat suspicious of the "annotated statute" style of presentation, this suspicion is alleviated here by the elegance of the writing and the clarity of the presentation. There are other volumes which present the material in alternative organizational ways, but the extensive experience and knowledge of the authors validates an otherwise sometimes questionable format. Anyone regularly working under the ICC rules will want a copy of this volume readily at hand.
Weissman, Stephen R., Preventing Genocide in Burundi: Lessons
from International Diplomacy, United States Institute for Peace,
1550 M St. NW, Suite 700, Washington, DC 20005-1708 (37pp 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
As usual with Peaceworks volumes from the United States Institute for Peace, this is a carefully researched and well written presentation of many of the complex issues that face the world in dealing with interethnic violence, here the relationship between Hutu and Tutsi in Burundi. Traveling the near edge of genocide, this conflict has been one of the most brutal of the second half of the century, and shows little sign of abatement other than that brought on by temporary victory and exhaustion.
Weissman presents a brief background to the conflict and then turns to recent developments and the international reactions they have brought about. He points out why many traditional remedies, such as partition would be unlikely to be effective here and indicates some of the problems presented by the multi-party nature of the conflict. He examines the, rather ineffective, role of the United Nations and of regional African diplomacy in seeking to encourage peaceful, or at least less violent, settlement, and some of the problems posed by marginal western interventions in these processes. He looks at two sustained, but largely ineffective, efforts by NGOs to assist in effecting peace, and finally ends with several lessons to be learned from the experience to date which may help to guide a reasonable settlement. Overall, he is not encouraging about the likelihood of a reasonably timely end to this extreme conflict.
Huber, Stephen K. and Trachte-Huber, E. Wendy, Arbitration:
Cases and Materials, Anderson Publishing Co., 2035 Reading Rd.,
Cincinnati, OH 45202 (792pp $37.95 1998) ISBN: 0870840479
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
In my review in the last issue of Tom Carbonneau's new casebook on Commercial Arbitration, I noted that it had been some time since we had had an adequate text available for the teaching of a course in arbitration rather than one in dispute resolution in which arbitration played a secondary role. With the publication of Arbitration: Cases and Materials by the Hubers, we now have almost an embarrassment of riches with two excellent casebooks competing for the attention of the instructor in this area.
Interestingly, however, the two books are, despite much common subject matter, quite distinct and will appeal to teachers with very distinct approaches to the material. Where Carbonneau's book focuses strictly on "Commercial Arbitration", the Huber's work is broader in its scope, taking far more account of labor and other areas of arbitration law and practice. While both books are fully conscious of the differences between arbitration in the United States and international commercial arbitration, Carbonneau is stronger on the international side, while the Hubers take substantially more account of the effects of state law and practice on arbitration than does Carbonneau. In addition, the Huber's book includes a more extensive picture of the history of arbitration, and is a somewhat more "texty" offering. In addition to a full range of cases, it has a heavier weighting of other materials including selections from law review articles and the like, as well as offering special sections such as its case study on Subway franchisees and its special examination of financial services and consumer disputes.
The Hubers beging with an excellent introductory chapter which places arbitration in the United States in historical and legal context. They then turn to the issue of what dispute are arbitrable and the interaction between state and federal law in regulating the arbitration process. The book then turns to the prearbitration stage, focusing on legal activities at that stage rather than arbitration planning, and then turns to the commercial arbitration process, the selection and role of the arbitrator, including the scope of remedial powers that the arbitrator holds, and the process of judicial review of arbitration awards. They then turn to some specific problems of interest, first multiple and third party issues, including joinder and collateral estoppel questions, and some specific problem areas for arbitration, including employment, antitrust, professional liability, and the like.
The decision of which of the two casebooks to use is likely to be an easy one for each teacher of arbitration, but not one on which third party advice is likely to be useful. Both casebooks are excellent and higly teachable, but they present very different approaches to the world of arbitration. The choice will be dependent more on the particular interests of the instructor than on any issues of the quality of the texts.
Fellman, Gordon, Rambo and the Dalai Lama: The Compulsion to
Win and Its Threat to Human Survival, SUNY Press, c/o CUP, PO
Box 6525, Ithaca, NY 14851 (315pp $65.50(c) $21.95(p) 1998) ISBN:
0791437841/37833
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
It has been suggested that all of the world's people can be divided into two groups, those who divide all world's people into two groups and those who do not. A specialist in sociological oversimplification and political correctness, Gordon Fellman clearly falls into the first category, although it is not the people, but there approach to the world that he would categorize this way. He suggests that there are two paradigms of human interaction, adversarial and mutual, and that the former is beginning to gradually give way to the latter.
The adversarial paradigm, as Fellman defines it, is involved with conflict and domination of one by another. The goal of individuals in society under this paradigm is to "win" and a substantial "devil take the hindmost" philosophy governs its adherents. Mutuality, in contrast, focuses on cooperation, caring, nurturing and loving a system of organizing one's universe, with winning being a less relevant goal or consideration.
The effect of following the paradigms Fellman sees as structuring all of life's ways. He indicates that "Adversarilalism culminates, individually, in feelings of rage that can escalate into total hatred and violence. Mutuality culminates in love: love for self, love for lover, love for parents, love for children, love for friends, love for group, love for humanity, love for nature, love for planet, love for life - love for a work of art, a sunset, a seascape, a walk in the woods." He sees individuals responding with ritually violent conduct, which he sees as intrinsic to the adversarial paradigm, but believes that the mutuality paradigm discourages such rituality and promotes independence of thougth and action.
Fellman sees the goal of "winning" which he considers intrinsic in the adversarial paradigm as the source of most of the world's evil. While he acknowledges that progress has occurred under that paradigm, he cannot accept the inequalities and other problems which result from it, and he feels that acceleration of violence is a necessary consequence of adherence to the paradigm. Thus, he sees the only hope for salvation of a world which he sees as headed to destruction as ultimately dependent on finding a way to transition to the mutuality paradigm.
Generally Fellman writes well and clearly although occasional language like that quoted above may leave som readers wanting to strangle themselves with a tie-dyed tee-shirt. While I do not find the model convincing, Fellman's intentions and goals are wholly honest and honorable, and his writing makes the presentation of his ideas enjoyable reading.
Picker, Bennett G., Mediation Practice Guide - A Handbook for
Resolving Business Disputes, Pike & Fisher, 4600 East-West
Highway, Suite 200, Bethesda, MD 20814-1438 (172pp $24.95 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
Bennett Picker's Mediation Practice Guide is designed to provide an introduction to mediation for the attorney or business person who has not previously been exposed to the concept and to provide him or her with sufficient information to make a reasonably informed judgement as to whether the mediation process is appropriate to a particular dispute. Written much in the style of a series of public lectures, with large number of bulleted lists and strong conclusory statements, it offers both the advantages and disadvantages of that format.
The focus of the book is on the decision by counsel to use or not use the mediation process. It begins by defining mediation and placing it in context as a means of resolving disputes prior to trial. It then examines the factors that lead counsel to elect to participate or not participate in the mediation process, takes the reader through the stages of a typical mediation, describes the various roles of the mediator, spells out the function of the lawyer/advocate in the mediation process, and then offers a set of brief case studies on the sue of mediation and on ADR strategies for corporations and law firms.
In a lecture on a topic such as mediation, the expectation is that the listener will obtain sufficient information to picque his or her interest, but not learn all that he or she needs to know to participate in the process as neutral or advocate. Rather the listener is usually expected to follow up the lecture with appropriate readings on the topic. When such lectures are presented in book form, however, the reader should be entitled to expect that the book will include, or at least reference, the additional information that the listener needs. It is in this area that the Mediation Practice Guide fails its readers, too often offering summary statements which, while accurate in and of themselves, beg a range of alternatives which are neither discussed nor even referenced.
The trick with a book of this kind is to provide enough information to make it valuable to the reader without overwhelming that same reader with unnecessary detail which would discourage him or her from continuing to read. This is a difficult balance to achieve, and in this case by overbalancing on the side of accessability, the text too often obscures rather than clarifies. Often definitions are presented without sufficient explanation for the inexperienced reader and new topics introduced and then dropped without sufficient elaboration to provide the novice with an understanding of their importance, or even the reason for their being mentioned. In addition, the lack of footnotes, bibliography, or even references to other sources also means that for many the book will be a dead end, rather than a guide into a new field.
Bennet Picker's experience in both litigation and mediation yields many useful and important "tips" for the mediation advocate throughout the book. Unfortunately, the overall weaknesses override these benefits.
Axelrod, Robert, The Complexity of Cooperation: Agent-Based
Models of Competition and Collaboration, Princeton University
Press, 41 William St., Princeton, NJ 08540-5237 (248pp $18.95 1997)
ISBN: 0691015678
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
In The Evolution of Cooperation (1984), Robert Axelrod introduced many in the field of dispute resolution to the idea of agent based models and the usefulness of such models in providing a basis for theory building and the discovery of new approaches to traditional problems. While rule based agent systems do not, inherently, describe the real world, they can often provide insights into the consequences of rational, and sometimes, irrational, decision making processes play out in a real world context. Just as the "rational decision maker" model has provided important insights in economics, even thought few if any individuals are fully rational in their decision making processes, similar insights about competition and collaboration can be reached from examing the activites or rule-based agents.
In his new book, The Complexity of Cooperation, Axelrod presents as series of experiments of substantial complexity, continuing to use computer based, adaptive agents to examine the nature of social/political processes. The agents are adaptive rather than rational, in that their conduct is not the result of voluntary choice, but rather of adherence to a defined rule-based system. In the experiments reported here the models are also frequently evolutionary, the rules develop based on reinforcement of successful results, analagously to the manner in which biological evolution occurs. The art in the use of this process rests in two areas: the development of the model and the recognition of the lessons to be drawn from its application. Axelrod is a master at both, and, perhaps equally importantly, an expert at explaining the conclusions reached in non-mathematical, as well as technical, terms.
Each of the seven chapters consists of an edited version of one of Axelrod's major papers after an introduction which places the paper in both theoretical and practical context. Each presents a model of a different form of social interaction and shows the likely result of repeated (iterated) applications of evolutionary rule based systems. The issues addressed begin with the introduction of "noise" (the random introduction of erronous responses) into an iterated, evolutionary, prisoner's dilemna, demonstrating that in the presence of such noise more effective strategies than tit-for-tat will develop in an evolutionary system. Other topics addressed include the way in which norms of conduct develop and are communicated, the manner in which coalitions are formed and dissolve, the development of common standards, the growth and destruction of political entities (perhaps the most fascinating model, which seems to confirm the cyclic theory of history), and the way in which culture is disseminated.
For those who wish to understand the way in which societies function and the role of both individualism and collective decision process (conscious and unconscious), this is a book to be savored. For those, like me, who were raised on Asimov's Foundation series of novels, there will be strong echos of Hari Selden's psychohistory as an additional draw.
Smit, H. and Pechota, V, International Arbitration
Treaties, Juris Publications, 1 Odell Plaza, Yonkers, NY 10701.
(325pp $150 1998) ISBN 1578230144
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
International Arbitration Treaties is another volume in the International Arbitration Series edited by Hans Smit and Vratislav Pechota and copublished by Juris Publications and Sweet and Maxwell. Like the other volumes in the series it provides a solid collection of materials on international arbitration, making available in English and in a single location material that would otherwise require substantial searching and sometimes translation from other languages. This is the fifth volume of the eight volume series.
The volume collects nine multi-national treaties establishing arbitration law or rules and the UNCITRAL Model Law, which, while not a treaty, has been enacted broadly and serves many of the same purposes of standardizing international arbitration practice. For each of the treaties and the model law an essay is provided setting forth the background of the convention, the text is provided in English, there is a list of contracting states, and a bibliography of substantial works about the convention in a range of languages and from a variety of nations.
The conventions included are: The Geneva Protocol on Arbitration Clauses (1923), The Geneva Convention on the Execution of Foreign Arbitral Awards (1927), The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), The European Convention on International Commercial Arbitration (1961), The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID), the European Convention Providing an Uniform Law on Arbitration (1996), the Inter-American Convention on International Commercial Arbitration (1975), The United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules 1978), and the Inter-American Convention on Extraterritorial Validity of Foreign Judgements and Arbitral Awards (1979), as well as the UNCITRAL Model Law.
Like the other volumes in this series, the materials are well edited and selected. While all of the conventions here are available elsewhere, this will be a convenient collection for libraries and individuals with a major focus on international commercial arbitration.
Smit, H. and Pechota, V, A Chart Comparing International
Commercial Arbitration Rules, Juris Publications, 1 Odell Plaza,
Yonkers, NY 10701 (170pp $110 1998) ISBN: 1578230128
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
Also a part of the International Arbitration Series edited by Hans Smit and Vratislav Pechota and copublished by Juris Publications and Sweet and Maxwell is A Chart Comparing International Commercial Arbitration Rules. One of the most common questions addressed to academics and experienced practitioners in the international arbitration arena is what set of arbitration rules should be incorporated into a proposed contract, or at least what the advantages and disadvantages are of the major sets of rules available. While factors beyond the content of the rules will often be more important, such as the nationality of the administrative organization and the usual language in which hearings are held, those matters can often be controlled by careful drafting, while procedural provisions of the rules are less likely to be directly modified.
The authors have decided to examine seven sets of arbitration rules, five designed for administered arbitrations: ICC, AAA, LCIA, ICSID and WIPO and two sets of rules for ad hoc arbitrations: UNCITRAL and CPR. While ICSID and WIPO's rule sets are not designed for the same wide range of commercial disputes as the others presented, they are included because of some of the unique provisions and approaches that they offer.
The conmparison is broken down into the following categories with many subsections of each. The rules on a particular topic are printed side by side in seven columns so that a full picture of the similarities and differences can be obtained. The classification used is: the Arbitration Clause, Commencement of Arbitration, General Conditions, Constitution of the Tribunal, Preliminary Issues, The Proceedings, and Arbitral Decisions/Awards. In many cases the rules have had to be reconstructed as different rule sets approach problems, often, in very different ways, and it is this that makes the chart expecially useful.
While most of those actively involved in international commercial arbitration have an instinctive sense of the differences amongst the different rule sets, or at least the ones that they deal with on a regular basis, this book goes far further and provides a detailed, side by side comparison of the rules on different subjects. In many areas such a review will be enlightening and may well influence the draughtsperson in the selection of the set to govern a particular agreement. A practical and useful volume.
Smit, H. and Pechota, V, National Arbitration Laws, Juris
Publications, 1 Odell Plaza, Yonkers, NY 10701. (2vol. ~2000pp $295
1998) ISBN 1578230152
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
Moving from strength to strength, the International Arbitration Series edited by Hans Smit and Vratislav Pechota and copublished by Juris Publications and Sweet and Maxwell moves with this volume from the areas of international law and practice to a collection of the national arbitration laws which, combined with the international treaties dealt with in earlier volumes form the foundation for the enforcement of arbitration agreements and awards. National statutes often control the form and content of arbitration agreements, procedural issues in the conduct of the arbitration, including the selection of arbitrators, and the process of enforcing or resisting the enforcement of an arbitral award. Thus an understanding of the arbitration law of any nation with a substantial connection with a particular arbitration, especially that of the forum state and any state where enforcement of an award is likely to occur, is essential for the advocate as well as the neutral. While there is an increasing tendency towards harmonization of national laws in this area, led particularly by the increasing use of the UNCITRAL Model Law as a basis for national legislation, there are still very substantial differences amongst the nations. Prior to the publication of this volume, it was extremely difficult for the arbitration practitioner to locate, especially in translation, the arbitration laws of all but the largest and most influential states. This volume provides the opportunity for the practitioner to be much more fully aware of this information and to take it into full account at both the drafting and enforcement stages of the practice.
The two volumes present the national arbitration law of 36 nations, including most of the major countries which actively participate in commercial arbitration of international disputes and influential nations from each continent. The omission of Hungary, India and Italy from the list is somewhat suprising. The outline of materials presented for each country is the same. It begins with a brief background essay which provides a description of the major commercial arbitration statutes in that nation as well as a notation of the international conventions to which the country adheres and the major arbitration institutions in the country. (It is worth noting that the brief presentations on these issues in this volume are more fully elaborated in other volumes of this series.) This is followed by the text of the major arbitration legislation in the nation, usually presented in both the original language and English. (The original language text is not included for nations which do not use either a European or Cyrillic alphabet because of limitations of typography.) The translations are clear and well edited, although their meaning may be less than obvious in some cases to those who are not familiar with the legislative practice in a particular legal system. In addition to national laws, sub-national laws of importance in this area are included in some cases (ie. United States state arbitration acts.) The final two sections for each nation are a commentary essay which discusses basic elements of arbitration practice in that nation such as: the arbitration agreement and arbitrability, selection and change of arbitrators, applicable law, arbitration process, judicial assistance, awards, judicial supervision, and enforcement. This is followed by a bibliography listing books and/or articles about the arbitration process in that nation.
It is increasingly clear that the volumes of the International Arbitration Series are going to be essential elements of any serious international arbitration practitioner's library, whether that individual is an advocate or a neutral. While few of the volumes offer material that could not be acquired elsewhere, the quality of the translations and the convenience of having the material collected in a single set makes it an irresistible acquisition.
Briner, Robert, et. al., Arbitration and European Law: Reports
of the International Colloquium of CEPANI April 25, 1997, Emile
Bruylant S.A., Rue de la Régence 67, 1000 Brussels, Belgium (229pp
BF1600 1997) ISBN: 2802710354
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
CEPANI is the Belgian Center for the Study and Practice of National and International Arbitration. Founded by the Belgian Committee of the International Chamber of Commerce and the Federation of Belgian Companies in 1969, it has sponsored several national and international colloquia and, since 1972, has offered its own set of dispute resolution rules, offering mediation, valuation, "adaption of agreements", and arbitration. This seminar, presented in April, 1997 offered an introduction, six academic papers, and general conclusions. The introduction was in Flemish and the papers were presented in French or English, and each presentation is accompanied by a brief summary in the other two languages.
The papers presented all deal with aspects of the practice of international arbitration in the European Union. Robert Briner, President of the ICC Court of Arbitration, focused briefly on the role of Europe in international arbitration and discussed briefly the weak response of the European Union and its institutions to arbitration as a dispute resolution mechanism. Bernard Hanotiau, of the Catholic University of Louvain, examined the place of arbitration in the competition law of the EU, and the tendency which can be seen of movement away from a near absolute prohibition of the use of arbitration in this area to a more flexible approach which considers the nature of the issues to be dealt with. Other questions include the responsiblity of the arbitrator to apply the positive law of the Union and the ability of the arbitrator to refer questions to the European Court. Yves Derains, former Secretary-General of the ICC Court, examined the actual application of European law by arbitrators in the reported cases. He concludes that the primary area addressed is competition law, and largely agrees with Hanotiau's evaluation of the arbitral response and he also addresses the necessity of arbitrator applying that law sua sponte. Peter Schlosser from the University of Munich examines issues of public policy, first the limitation which such policy places on the enforcement of arbitration awards and second the effect of national policies favoring arbitration. Johan Erauw, University of Ghent, takes a detailed look at the potential use of reference to the European Court by arbitrators, currently not possible, but potentially a valuable resource. He suggests the scope witin which it should be allowed and limitations that should be placed on the process. Finally, Marc-André Gaudissart of Ghent and his colleagues examine the range of dispute settlement procedures in treaties and other international agreements entered into by the EU, identifying a pattern which requires diplomatic efforts as a predecessor to arbitration on public issues and the use of ad hoc rather than established arbitral bodies. The summary by Koen Lenaerts and Marc Pittie of Louvain nicely catches the flavor of the earlier pieces and puts them in a uniform context for evaluation the usefulness of the arbitration process in Europe today.
Overall this is a worthwhile set of essays focused both on the present and likely future directions for arbitration in Europe. The issues addressed will continue to form central themes in the debate over these developments.
Cotran, Eugene and Amissah, Austin, eds. Arbitration in
Africa, Kluwer Law International, 675 Massachusetts Ave.,
Cambridge, MA 02139 (491pp $182 1996) ISBN: 9041102949
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
The Pan African Council of the LCIA (formerly the London Court of International Arbiration) was formed in 1993 and held its first major conference in December 1994 in Nairobi, Kenya. This volume contains the edited proceedings of that conference, which was designed both to take the measure of the current state of arbitration in Africa and to promote its use and development as a part of the process of increasing international trade and the modernization of African judicial and legal systems. Like many of the conferences on Africa organized by groups from the United Kingdom, the emphasis was on the anglophone nations, but in this case at least some serious attention was paid to the fact that Africa is a multi-lingual continent that extends beyond the former boundaries of the British Commonwealth.
As the editors point out, arbitration and other alternative dispute resolution processes were not generally introduced to Africa during the colonial period, most international commercial activities and disputes involving Africa having been based and resolved "at home" by the colonial powers. While there were indigenous institutions that resembled arbitration, or perhaps more closely settlement assistance mechanisms such as mediation and neutral evaluation, these received little attention from the colonial courts and, while they were likely of substantial importance on the ground, have had little influence in the development of the modern state court systems in the African countries. Thus, in many respects, many of the African nations provide a clean slate for the development of modern arbitration systems which can encourage the development of international trade. The advantages of this can be seen in the adoption by many of them of the UNCITRAL model for their new arbitration statutes, bypassing many of the difficulties that have faced European nations in the development of their arbitration law.
The conference began, after the usual welcoming addresses, with two major papers by Michael Kerr and Jan Paulsson providing an overview of the nature of arbitration and some of the issues which need to be addressed by courts and legislatures in implementing modern arbitration laws. Kerr surveyed the current status of international commercial arbitration, reviewing the legal background, including the New York Convention, and the way in which national law has adapted to changes in arbitration that has followed commercial practice. He also examined the nature of the major arbitral institutions and the role of the LCIA and its rules in promoting the process. Paulsson focused on the essential functions of the courts in promoting arbitration as an independent decision making mechanism. He focused on the "ugly award", one that courts might reasonably want to reject because of errors of law or fact or improprieties in the manner in which it was promulgated, and explained the reasons why it is important that even an unattractive award be provided with protection by national courts to maintain the integrity of the international commercial arbitration system.
The remainder of the conference consisted of presentations on the state of arbitration law in the African nations. Country reports were presented from Kenya, Uganda, Tanzania, Nigeria, Ghana, The Gambia, Sierra Leone, Zimbabwe, Malawi, and Zambia. Regional reports dealt with Southern Africa (including South Africa, Botswana, Lesotho, Swaziland and Namibia), Arab North Africa (including specific treatment of Algeria, Egypt, Libya, Morocco and Tunisia) and two reports on Francophone Africa, the first summarizing the status of arbitration in the former French colonies, and the second examing the stae of the law in the former Belgian ones. Appendices include the laws of the five African nations which had at the time adopted the UNCITRAL Model Law (Nigeria, Tunisia, Egypt, Kenya and Zimbabwe) and a list of African nations which had signed or ratified the New York Convention, ICSID, or the convention establishing the Multilateral Investment Guarantee Agency (MIGA).
The volume is a valuable one for members of several audiences. For officials in Africa it provides both a reminder of the current state of the law and indications of the most profitable directions for legal development. For legal and arbitral historians and scholars, it draws together a good deal of useful information about one form of dispute resolution in a region to which relatively little attention has been paid. For the practitioner, it provides a useful summary of the current state of arbitration law in the various African states as of the time of the conference and indications of likely developments which might affect practice on the continent or with commercial projects centered there.
Mittal, D.P., Taxmann's New Law of Arbitration, ADR &
Contract in India, Kluwer Law International, 675 Massachusetts
Ave., Cambridge, MA 02139 (499pp $163 1997) ISBN: 9041103589
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
When those in the commercial arbitration field think of 1996, they are apt to focus on the English Arbitration Act of that date as the bellwether event of the year. Potentially of at least equivilant importance, however, was the implementation in India of first the Arbitration and Conciliation Ordinance, 1996, and then the enactment of The Arbitration and Conciliation Act, 1966 which superseded the Ordinance while incorporating its provisions into the permanent law. The new act received the assent of the President of India on the 16th of August, 1996 and came into effect the following week on the 22 of August. Mittal's revision of Taxmann's New Law of Arbitration provides a solid background on the law of arbitration in India prior to the new act and on the effect of the new Act on that law in some 126 pages. It also includes, which will not be discussed here, an approximately 77 page summary of the law of contract in India.
Leaving aside the contract materials, the remainder of the book is divided into five divisions (sections). The first provides an overview of dispute resolution mechanisms, including a review of the structure of the Indian judical system, a history of arbitration law in India with a focus on the 1940 Act which was effective until the passage of the new law, and then a detailed overview of the Arbitration and Conciliation Ordinance, 1996, which was the foundation of the new statute. The second division looks at domestic arbitration with chapters on the arbitral agreement, the composition of the tribunal, tribunal jurisdiction, the proceeding, making the arbitral award, judicial review of the award, the issues of finality and enforcement, appeal of awards, and the applicability of the Limitation Act, 1963, (establishing statutes of limitation) to arbitration. The third division looks at international commercial arbitration focusing on the enforcement of foreign awards, while the fourth looks at the conciliation process established under the law, and the fifth addresses a few miscellaneous matters included for the sake of completeness. Appendices include the text of the Ordinance and of the predecssor bill which failed in the legislature in 1995, as well as the UNCITRAL Model Law, the Arbitration Act, 1940, and other relevant earlier legislation.
The treatise is reasonably well written and clear on the effects that the new Act is likely to have. Reference to authority is limited, unsuprisingly in discussing such a new enactment, although some more attention could have been paid to the manner in which the UNCITRAL Model Law, on which the legislation is based, has been implemented elsewhere. This will provide a useful analysis of the provisions of the Act for those who will be practicing in matters involving India.
Moody, Susan R. and Mackay, Robert E., Greens Guide to
Alternative Dispute Resolution in Scotland, Sweet & Maxwell,
Cheriton House, North Way, Andover, Hants SP10 5BE, England (193pp
£38 1995) ISBN: 0414011155
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
W. Green was traditionally a major Scottish publisher which is now affiliated with Sweet and Maxwell. One of the series for which they are well known are the Greens Guides to various areas of Scots law, which provide a relatively clear introduction to and survey of an area of law in language suitable for laymen as well as for attorneys. This volume, edited by a law and a social work faculty member both at The University of Dundee, continues that tradition by offering a series of essays of the place of alternative dispute resolution in various areas of Scottish law and life. Although the volume was published in 1995, I apparently missed notice of its publication at that time, and would like to thank my daughter, who found a copy while visiting in Edinburgh and brought it back for me.
The book consists of ten essays, two each by the editors, and the remainder by academics, solicitors, and dispute resolution practitioners, each looking to a specific question or area of practice. Susan Moody begins the process with an overview of alternative dispute resolution focusing on party control of the processes, defining the basic terms, and discussing briefly some of the factors in the availability and usefulness of these techniques for the public. Robert Mackay follows with a discussion of ADR and criminal justice, focusing primarily on restorative justice, where he was a pioneer, but also addressing some of the collateral uses and consequences of such processes. Susan Mathieson of Family Mediation Scotland provides a tight essay which describes the mediation processes in use in family matters in Scotland and also addresses many of the practical issues in mediation's use in this area.
The next four papers deal with the use of ADR in commercial and public settings. W. Cowan Ervine, Mungo Deans, and Michael Tooze, colleagues of the editors at the University of Dundee, look, in turn, at the use of ADR in consumer disputes, ADR and public law, and ADR in employment disputes. Gordon Hollerin, a solicitor and mediator, addresses its use in commercial issues.
The final three chapters address general issues in the implementation of ADR in Scotland. Neil Davidson, best known as an international arbitrator but also active as a mediator, discusses questions of confidentiality and privilege, while the editors return with an essay by Moody on the place of lawyers in ADR and a look to the future of ADR by Robert Mackay. Also included are a glossary and select bibliography.
The essays are well written and address nicely the concerns of both lawyers and the general public. ADR has received strong backing in Scotland from the legal profession as well as the public, and this book gives a good sense of how that has come about.
Stitt, Allan, ADR Systems Design for Organizations, John
Wiley, 605 Third Ave., New York, NY 10158-0012 (249pp $35 1998)
ISBN: 0471642959
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
The rapid growth in the corporate world in interest in implementing dispute resolution systems has made it increasingly apparent that there was a need for a book which would present the process of developing such systems in clear, direct language that would be readily accessible to businesspeople who were not well versed in the technical language of the management community. In this book, Allan Stitt, one of the leaders in dispute resolution in Canada and one of the more thoughtful proponents of the use of dispute resolution processes around the world, has taken many of the concepts that have been developed on system design by such pioneers as Brett, Ury and Goldberg, Constantino and Merchant, and Roy Lewicki and his associates, added his own insights into the process, and translated this into the kind of language that makes it readily accessible to most readers. Combining a straightforward set of standards for the development and implementation of dispute resolution systems in organizations with a series of brief but pointed case studies, he provides a framework which can be applied in small, medium, and large organizations to improve the management of a wide range of conflict situations.
Keeping his eye on the ball, Stitt points out that the goals of any such system should include, or at least consider, the reduction of time and cost involved in dispute management, the maintenance or improvement of relationships between disputants, and attention to the need for outcomes to be workable, durable, and implementable, as well as providing appropriate outlets for expressions of emotion, and educating the participants through the process. With this basis the adopts DIRECT as an acronym for system development (Diagnosis, Interest-Based Processes first, Rights-Based Processes later, have Exits and re-entries, and use of Training and Evaluation). While I am usually suspicious of such convenient acronyms, in this case I think that Stitt has managed to accurately capture most of the basic questions that need to be addressed.
The book follows the outline suggested by the acronym. After opening with a concise description of ADR and of how it fits into a system design process, he focuses on diagnosis, first of the organization and then of the types of disputes that the organization faces or anticipates. From there he clarifies the distinction between interests and rights and the reason for focusing first on the former, and provides a short, but very clear pictures of the principled negotiation and mediation processes and the manner in which they permit the exploration, and frequently resolution, of mutual interests. He then turns to rights based processes, describing both nonbinding and binding processes and their appropriate places in a system, and then turns to the need for outlets from the systme to allow cooling down and refreshing without compromising the search for solutions. In the final two chapters, Stitt turns to the training processes needed to implement such a system, the evaluation processes needed to assure that it is functioning properly and remaining on course, and, finally, the use of ADR in dealing with external disputes. Appendices include a sample multi-step ADR clause, and mediation procedure manuals from the Bank of Montreal and the Ontario Human Rights Commission.
This book fills a clear need for the community. Those who are involved in the development of dispute resolution systems for the corporate and organizational communities will want to seriously consider using it as both an advertisement for the kind of services that an ADR system designer can offer and as a demonstration of the potential effectiveness of the product. Analytical, but easily readable with a light tone and touch, this is the kind of book that will likely attract managers to the services offered.
Feld, Lisa and Simm, Peter A., Mediating Professional
Misconduct Complaints, The Network, Conrad Grebel College,
Waterloo, ON N1H 3Y8, Canada (136pp $Can35 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
The mediation of professional misconduct issues is an area of substantial promise which has received a modest amount of theoretical interest but relatively little practical utilization. While the mediation of malpractice claims, primarily medical but also occasionally legal and accounting, has proven productive in several jurisdictions, the use of mediation in misconduct cases that do not rise to the level of malpractice claims has been severely limited. Even where programs exist they have tended to receive little attention and lie dormant while the bodies traditionally charged with dealing with misconduct complaints proceed in their traditional manner.
Lisa Feld and Peter Simm have examined the professional misconduct Complaint-Mediation program of the College of Physicians and Surgeons of Ontario (CPSO) and have derived, from the study of that program, an extensive review of the literature, and substantial analytical thought, a model for the implementation of Complaint-Mediation programs by any professional group. This is the first substantially empirically based proposal of this kind and provides substantial insights into the potential strengths, weaknesses, opportunities, and limitations of such a program.
The volume is divided into three sections. The first looks at the nature of professional discipline, reviews the history of the CPSO in the area of professional discipline and the development of the program they implemented. During the five year study period 266 cases were referred for possible mediation. The cases are ones where there has been a preliminary determination that the matter alleged does not warrant public sanctions, but are sufficiently serious that it does merit the attention of he Discipline Committee if an agreed resolution is not possible. Of these, in 55 cases mediation was refused either by the complainant (44 cases) or the physician (5 cases) and one case was withdrawn by the staff of the program as an inappropriate reference. Of the 208 cases mediated 56 were dealt with by outside mediators and in 45 of those cases mediation was successful, in 10 it failed, and one case remained in process. The remaining 152 cases were mediated by program staff, a substantially different model as the staff mediators were charged with assuring that the interests of CPSO were also met (a form of mediation by an interested mediator which is relatively rarely acknowledged in the literature, but is not at all uncommon). Of these cases 85 remained in progress at the time of the study. Of the 67 completed cases mediation was successful in 58 cases and failed in 9 cases, but there were some indications that the failure rate was decreasing over time as the staff gained experience.
The second section examines a number of key issues in the operation of a complaint-mediation program in the context of the CPSO program. Issues examined include: neutrality and public interest, satisfaction of the parties, the nature of the complainants, motivations and expectations of the parties, the issues of coercion and power imbalances, the form of the hearings, and the roles of lawyers. Each of these was evaluated in terms of its consequences for the effectiveness of the process.
The final section seeks to generalize from the knowledge gained in the underlying study. First alternative approaches to dealing with discipline problems are examined and then some of the issues in system design are considered. This is followed by an examination of some of the criticisms that have been addressed to the use of mediaton processes in this context and responses, and finally a group of recommendations for professional bodies considering establishing a complaint-mediation program.
Appendices offer a summary of the findings of the study, case summaries, sample documents, and other useful materials elaborating the text. This is a very valuable study addressing an important and underutilized area for mediation and clearly identifying not only the advantages, but also the pitfalls that need to be dealt with in establishing a program. It will provide important guidance to regulators of professional conduct in many fields.
Thurston, Anne F., Muddling toward Democracy: Political Change
in Grassroots China, United States Institute for Peace, 1550 M
St. NW, Suite 700, Washington, DC 20005-1708 (56pp 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
If there was ever any doubt that "China is different", this study of the implementation of local elections in rural Chinese villages would soon disabuse the doubter. In contrast to elections in the west, these elections, which take place under a 1987 law, leads to the selection, for a three year term, not of government officials, but of "transmission belts between the government and the villagers, reporting popular opinion and proposals to the government, helping to maintain social order, and mediating civil disputes." This report, by an expert on China who has spent several visits to China investigating the village election process, provides a broad ranging and largely non-ideological look at a process which could end in the development of large-scale democratic processes in China or, quite possibly, the reverse.
The report consists functionally of four sections in addition to a useful foreword and introduction. The author provides a concise, but very clear, history of political reform in China as it has affected the village, with an emphasis on the economic factors that have led to and resulted from that reform. In addition, this section provides a brief history of the origins of the local democracy movement. She shows a remarkble talent for sketching major developments in a few words that focus the reader's attention on the points that are essential for understanding her thesis.
The second major section of the paper is a series of reports on the implementation of local elections in villages and regions around China that the author has either observed, or of which she has had detailed reports from reliable observors. Her observations indicate that there is a great disparity amongst the election processes in the villages and that there does not appear to be a clear pattern as to which processes are relatively successful and which fail, or even a clear definition of failure beyond the villages lack of ability to elect a leader.
In the two sections of analytical summary, Thurston concludes that the elections will generally succeed when there is effective support from the central government, where power is less concentrated, where election officials have been properly trained in their roles, and where there is repeated experience of the election process. In addition, she notes that foreign cooperation, carefully provided, can encourage the implementation of such democratic reforms.
In conclusion Thurston concludes that the most successful local elections lay a powerful basis for democratic consciousness and that it would therefore be appropriate for the United States, especially through NGOs to provide support for these operations. This is an exceptionally well conceived and well written paper and is deserving of the serious attention of all those interested in the development of democratic processes.
Martindale-Hubbell, International Arbitration and Dispute
Resolution Directory 1998, Martindale-Hubbell International,
IADRD Dept., 121 Chanion Rd., New Providence, NJ 07974 (1128pp $195
1997) ISBN: 1857392310
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
The arrival of the third annual edition of the Martindale-Hubbell International Arbitration and Dispute Resolution Directory is, once the reader has set down the approximately seven pound volume, a pleasant reminder of the growth of the field. The volume remains a fundamental reference, including, in addition to the 664 pages of the directory, listing firms or individuals in almost every nation of the world who are prepared to provide either advocacy or neutral services, the detailed indexes by services provided, areas of practice, and languages spoken, each further broken down by country of origin, and the comprehensive alphabetical index, an almost 400 page collection of materials providing basic information useful to members of the field.
Much of the material in the text section is repeated from prior years, fully appropriate in a volume that is intended to be discarded and replaced with each new issue. The first section offers three essays: Paul Mitchard's offers a useful summary of basic ADR techniques with ideas about their applicability, while White and Case have provided a worldwide survey of events during the present year including legislation, major case decisions, changes in the rules of major arbitral institutions, a survey of the activity at major arbitration centers, and the like. This essay is especially useful in drawing together information from a wide range of sources and will hopefully become a regular feature of the Directory. Similarly, the Institute for Transnational Arbitration has provided a useful chart of national adherence to the major arbitration treaties, including the NY, ICSID, MIGA (Multilateral Investment Guarantee Agency), Interamerican, OPIC, and US Bilateral Investment treaties.
Section two presents rules, codes, and conventions, including the international arbitration rules of most of the major arbitration administrative organizations, a selection of rules for special processes including conciliation, mediation, mini-trials, and non-administered arbitration, and the language of the principle treaties (NY, Geneva, Inter-American, ICSID) and the US Arbitration Act and AAA/ABA and IBA codes of ethics. Section three delas with the activities of major arbitration and dispute resolution organizations and includes a list of a few major conferences, and descriptions, including contact information, for an extensive list of the most important dispute resolution organizations, both transnational and national.
As I noted in reviews of the earlier volumes, the directory section remains one of the primary resources for the selection of either a neutral or an advocate in a dispute situation throughout the world and provides sufficient background to allow that decision to be intelligently made. The text materials provide a very useful resource, well complementing the directory itself.
Reisman, W. Michael, The Supervisory Jurisdiction of the
International Court of Justice: International Arbitration and
International Adjudication (Académie de Droit International, Recuiel
des Cours v 258), Kluwer Law International, 675 Massachusetts
Ave., Cambridge, MA 02139 (394pp $129 1997) ISBN: 9041104410
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
For those who are unfamiliar with it, the Recueil des Courses (Collected Courses) of the Hague Academy of International Law, a series which now includes over 260 volumes, is one of the most respected collection of writings in the field of public international law and related subjects. Each year a group of advanced students gather at the Hague during the summer for either a basic or advanced course in Public International Law, and the lectures, which are given on an invited basis by world renowned experts in the field, are collected, after editing by their authors, into these volumes which, as a result, offer much of the best thinking in the field.
It is somewhat unusual for a volume of the series to be dediated to the presentation of a single author, but Michael Reisman, a professor at Yale Law School and one of the best known names in the field, more than justifies the dedication of this volume with his analysis of the supervisory jurisdiction of the International Court of Justice and its predecessor, the Permanent Court of International Justice.
The supervisory jurisdiction of the Court refers to two classes of cases, which have some fundamental similarities. The first class are cases in which the Court is authorized to render an advisory opinion regarding the operation of an international organization. The authority of the court in such cases is not to review the correctness of the underlying decision, but the propriety of the manner in which the decision was made and the legitimacy of the process (analagous to but not the same as "due process" analysis under the United States Constitution). The second aspect of supervisory jurisdiction is the role of the court in the supervision of the Public International Arbitration process, which is the principal focus of this volume.
As Reisman points out, the public and private/commercial international arbitration systems are quite distinct, and the drawing of analogies between their operation is perilous at best. Public international arbitration involves disputes between states, usually submitted to arbitration either under the terms of a pre-existing treaty or on an ad hoc basis, with a special agreement governing the submission. The International Court of Justice can be granted by the parties, but does not otherwise necessarily have, jurisdiction to supervise the arbitral process. While there have been a limited number of cases where that jurisdiction has been exercised, there is enough information for the detailed analysis that Reisman offers.
The essay, and despite its length this is a proper description, is divided into an introduction and four chapters. The first chapter introduces the place of arbitration in the public international scene and provides the background for the court's role. The second and third chapters examine the jurisprudence and role of the court in the pre-arbitral and post-arbitral phases, and the fourth chapter projects the future of supervisory jurisdiction, suggesting the need for more active involvement of the Court in arbitral matters, but concerned about the political elements that play into the Court's decisional processes.
Reisman writes brilliantly with remarkable clarity in developing an area which has received a good deal less attention than it deserves. The volume is a model of research and presentation in public international law.
Robbins, David E., Securities Arbitration Procedure Manual (3d
ed), Lexis Law Publishing, PO Box 7587, Charlottesville, VA
22906 (1115pp $120 1998) ISBN: 1558348905
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
Robbins' Securities Arbitration Procedure Manual is a well established treatise on the securities arbitration process that provides in sixteen chapters a well designed survey of the law and practice in this rapidly expanding area. Of course the question of what the effect of the new NASD and NYSE rules which will no longer compel the use of arbitration for employment disputes in the industry will have on the practice is yet to be determined, but there is plenty of activity on the customer/broker front to maintain the interest of both counsel and potential parties.
Prior editions of the Manual were published in looseleaf format, but with the rapid updating needed for the primary volume, the prior edition was published in 1996, a decision has been made to go with pocket parts as a supplementation device. To my mind this makes the primary text more accessible although it does create some degree of inconvenience in checking for currency.
The basic outline of the book is unchanged, providing an overview of the arbitration process followed by a multi-chapter review of the basic legal issues. Several chapters then address practical concerns, such as the strength of claims, the use of experts, and the like, and these are followed by a detailed review of the arbitration process from orginal claim through prehearing and discovery issues, and selection of arbitrators to the hearing process and the making of the award. Finally chapters examine the scope of available relief, especially the question of punitive damages, industry arbitration (employment) cases, and finally securities mediation.
Amongst the revisions noted in this edition are coverage of discovery on the internet, arbitrator training on motion practice, the new NASD eligibilty rule, a reexamination of punitives in light of that rule, proof of market manipulation, infliction of mental distress, and much more. Overal this remains a well written and authoritative volume on the way things are in securities arbitration. The one limitation is that the law and practice has moved so rapidly that frequent supplementation will be essential, but Lexis should be able to provide that effectively.
Blauert, Jutta and Zadek, Siman, Mediating Sustainablility:
Growing Policy from the Grassroots, Kumarian Press, 14 Oakwood
Ave., West Hartford, CT 06119-2127(306pp $25.95 1998)
ISBN:1565490819
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
Mediating Sustainability is a fascinating book about the process of encouraging the development of sustainable agricultural and development projects in the third world. For those with an interest in rural and agricultural development it presents a series of thoughtful articles looking at patterns of response in various Central and South American nations. Unfortunately, however, the term mediation as used here has little reference to its use in the dispute resolution community. Rather the editors are referring to effectuation of policy as mediation, a proper use of the word, but not one that has substantial relevance to the interests of most readers of this newsletter.
Lickson, Charles, Ironing it Out: Seven Simple Steps to
Resolving Conflict, Crisp Publications, 1200 Hamilton Court,
Menlo Park, CA 94025-1427 (177pp $12.95) ISBN: 1560523794
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
Ironing it Out by Charles Lickson of Mediate-Tech is a useful introduction to personal conflict management for a middle range audience. It attempts, generally successfully, to win their attention and teach them some useful skills without overwhelming them with information or demanding undue effort. Originally published as a manual for Lickson's conflict resolution training courses, the book is pitched a bit below the level of sophistication that I would have expected, but provides some straightforward and solid ideas on dispute management. It should be noted that the subtitle is somewhat misleading as the focus of the book is really on dispute resolution rather than conflict management, although many of the techiques for the one are clearly applicable to the other.
The seven simple steps of the title will seem familiar to most in the field. Derived, in large part, from Getting to Yes, (careful editing would have corrected the consistent misspelling of William Ury's name) but restated in differnt form, they include identifying the real problem, developing alternative solutions, communicating to be heard, and look to preserve relationships, well trod, but strongly valid lessons. Examples are provided from a wide range of disputes including professional and personal, and specific chapters address workplace, family, and public disputes with note taken of other areas of attention. Exercises included in the book are often ones that would be more useful in a training program than for self-administration, but do point up the issues that are being addressed
Overall, the tendency to oversimplify the analysis of disputes and lack of care in the editing process would not make this a prime choice for a self-education program, but it could serve well as a manual to accompany dispute resolution training.
Craig, W. Laurence, Park, William W., and Paulsson, Jan,
Craig, Park & Paulsson's Annotated Guide to the 1998 ICC
Arbitration Rules with Commentary, Oceana Publications, 75 Main
St., Dobbs Ferry, NY 10522 (238pp $100 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
The ICC Arbitration Rules are probably the best known set of procedures for international commercial arbitration and the ICC, itself, is one of the most important administrators for such arbitrations. Thus the preparation and publication of a new set of rules is a matter of real importance to the international arbitral community. These new ICC Arbitration Rules were approved by the Council of the ICC in April of 1997 and became effective on January 1, 1998. The prior comprehensive rules revision was in 1975, so this one was well due.
The new rules do not work any fundamental change in the operation of ICC arbitration. Rather they attempt to refine the process, reducing delay and unpredicability of procedural action, resolve problems which have become apparent in the operation of the prior rules, and deal with specific issues such as the procedure for dealing with costs. The rules are, however, substantially reorganized into 35 articles divided into seven chapters, simplifying access to them for the less experienced user.
The annotations which are provided by the editors follow a standard pattern. The provide, following the text of the new rule, the prior text, a list of the specific textual modifications from the prior rule, a comment on the purpose of the revision and its anticipated effect on arbitration practice under the rules. Where ideas have been adapted from other rules, such as the American Arbitration Association and the London Court of Arbitration, UNCITRAL, etc., this fact is noted and discussed. Finally, a section on "Other References" lists other sources for the rule and comments on the subject matter including references to the Court of Arbitration's recommendations and to the coauthors' treatise.
The annotations provided are concise and clear and provide the basic information that one would seek, although they do not substitute for the analysis provided by a treatise in the area. Primarily they are important for those who have become accustomed to the prior rules and need a ready reference to make certain that changes in the rules do not mandate practice changes on their part. The book also contains conversion tables for the 1975 Arbitration Rules and the 1980 Internal Rules and the current versions of the Statute of the International Court of Arbitration and the Internal Rules of the Court, as well as the schedule of arbitration fees and costs. The books is further graced with a useful topical index.
Policy Concensus Initiative, States Mediating Change: Using
Concensus Tools in New Ways, Policy Concensus Initiative, c/o
Dick Gross, 1003 East Interstate Ave, Suite 7, Bismark, ND
58501-0500 (12pp 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1998.
This 12 page pamphlet is designed to introduce governors and state legislators to the use of dispute resolution in the accomplishment of the public business and the public interest. Prepared by Chris Carlson and Dick Gross, the co-directors of PCI, it begins with some examples of the way in which conflict resolution techniques can resolve difficult problems of public policy, provides a brief overview of the common features of dispute resolution approaches with supportive comments from well known state officials, and then provides a series of brief case studies of effective interventions.
The interventions demonstrate a range of possible approches from mediation and reg-neg through facilitation and mediated convening and cover issues ranging from environmental to health care to housing. If you are seeking a means of introducing public officials to the potential offered by dispute resolution techniques, there are few competitors which are as direct, clear and effective as this piece.
Many thanks to mediate.com for this archive.
The Alternative Newsletter, Copyright © 1998 James B. Boskey. All rights reserved.
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