Hey guys,
I just got back from NYC. With the flu. This is a pre-emptive apology for if I don't get my post up in time tomorrow. Sorry. Hope everyone else who was sick last week got better.
Ugh, September.
Sunday, September 25, 2011
Sunday, September 18, 2011
Opening and Closing Statements
Reading these two chapters reminded me of the Garner/Scalia book on oral advocacy that I read last year for LRLW (it's called "Making Your Case", and I highly recommend it). The points made on the importance of the statements, and how to properly execute them, seem logical and straight forward to me, but it is very easy to understand how to present in theory, and much more difficult to execute in practice.
The thing that stood out most to me was keeping the international nature of your tribunal in mind. Footnote 4 was entertainingly cautionary on the potential for confusion when using words or phrases that seem perfectly normal to you, but are hard to understand for your audience. Thus, besides simplifying your argument for the purposes of the opening, in some way language itself must be simplified to reach a level that everyone can understand with relative ease. Naturally, not every situation can be expected ("full and frank" was not something I expected to be uncertain), but it's something to keep in mind. On top of that, I also thought it was interesting that the author noted how mannerisms like looking people in the eye could be taken differently by people from different cultures.
With cultural differences in mind, I wonder if there have been instances of arbitration where, for cultural reasons, female advocates are advised not to represent a case because of their gender (there are still many places in the world that hold strong views on women's places in life).
The thing that stood out most to me was keeping the international nature of your tribunal in mind. Footnote 4 was entertainingly cautionary on the potential for confusion when using words or phrases that seem perfectly normal to you, but are hard to understand for your audience. Thus, besides simplifying your argument for the purposes of the opening, in some way language itself must be simplified to reach a level that everyone can understand with relative ease. Naturally, not every situation can be expected ("full and frank" was not something I expected to be uncertain), but it's something to keep in mind. On top of that, I also thought it was interesting that the author noted how mannerisms like looking people in the eye could be taken differently by people from different cultures.
With cultural differences in mind, I wonder if there have been instances of arbitration where, for cultural reasons, female advocates are advised not to represent a case because of their gender (there are still many places in the world that hold strong views on women's places in life).
Monday, September 12, 2011
CISG
This post could have been titled "How I Wish I'd Learned More About Contracts in 1L Year." It appears that, even internationally, the basic elements of contract law are inescapable. Thus, the things that puzzled me in Contracts class, like the whole "meeting of the minds" thing, live on in CISG; it seems to me that if meeting of the minds seemed complicated to me on a domestic level, it could only get worse on an international level. And I think it does.
It makes sense that a contract between parties should be on the terms that both parties believe them to be. Thus, if it can be shown that the two parties intended something entirely contrary to what is written, the written contract should not be abided by. This makes sense, but it's often really hard to piece together from what is written and what has been exchanged verbally the true intentions of both parties. If you add on the extra complications of cultural differences and language barriers, the attempt at interpreting what the contract was actually about gets even more difficult. I'm not sure that there is a better way to go about looking at contracts, but this was the main issue that stuck out at me after reading the chapters for the week.
I also found it interesting that consideration is not required to form a contract under the CISG; recalling vaguely that our Professor emphasised the importance of consideration, it had not really occurred to me that contract formation could occur otherwise. Since it seems, at least domestically, that consideration is an important part of a valid contract, I wonder how often it comes up that the parties incorporate that into their negotiations.
It makes sense that a contract between parties should be on the terms that both parties believe them to be. Thus, if it can be shown that the two parties intended something entirely contrary to what is written, the written contract should not be abided by. This makes sense, but it's often really hard to piece together from what is written and what has been exchanged verbally the true intentions of both parties. If you add on the extra complications of cultural differences and language barriers, the attempt at interpreting what the contract was actually about gets even more difficult. I'm not sure that there is a better way to go about looking at contracts, but this was the main issue that stuck out at me after reading the chapters for the week.
I also found it interesting that consideration is not required to form a contract under the CISG; recalling vaguely that our Professor emphasised the importance of consideration, it had not really occurred to me that contract formation could occur otherwise. Since it seems, at least domestically, that consideration is an important part of a valid contract, I wonder how often it comes up that the parties incorporate that into their negotiations.
Monday, September 5, 2011
I came away from this week's reading being mostly confused about the laws governing the arbitration process. My understanding so far (which could well be entirely incorrect, since I'm mostly confused) is that there are potentially three separate laws that could apply to one arbitration: the law governing the substantive issues between the parties (e.g. contract law), the law governing the arbitration (e.g. law that sets out whether an issue is arbitratable), and the procedural law of the arbitration. Furthermore, the "seat" of the arbitration, where the rules of arbitration come from (lex arbitri), does not actually have to be the place in which most of the proceedings take place, but the lex arbitri are still what governs. Yet, local laws with regard to matters like evidence taking must still be respected.As a result, it seems unavoidable that some major forum shopping occurs, since forum shopping is a problem in this country with only two systems (state/federal) to contend with.
After reading about the laws governing arbitration, I am surprised that not more strife arises just from a) having the parties decide the governing laws b) having parties, halfway through the arbitration, get really confused as to which law governs what. Although the reading tried to explain the importance if the lex arbitri, I don't entirely understand why there can't be a uniform system of rules that satisfy what the lex arbitri accomplishes. True, different countries will have different interests, but I thought that part of the point of international arbitration was to provide neutral ground. If the country has no interest in the manner at hand, since it is (in theory) neutral, how important could having a country-specific arbitration process be? On matters such as whether you can use another country's procedural law, it seems odd that the international community has not just decided one way or the other.
I started this semester with the understanding that arbitration was meant to be a simpler solution to litigation. I am beginning to rethink that.
After reading about the laws governing arbitration, I am surprised that not more strife arises just from a) having the parties decide the governing laws b) having parties, halfway through the arbitration, get really confused as to which law governs what. Although the reading tried to explain the importance if the lex arbitri, I don't entirely understand why there can't be a uniform system of rules that satisfy what the lex arbitri accomplishes. True, different countries will have different interests, but I thought that part of the point of international arbitration was to provide neutral ground. If the country has no interest in the manner at hand, since it is (in theory) neutral, how important could having a country-specific arbitration process be? On matters such as whether you can use another country's procedural law, it seems odd that the international community has not just decided one way or the other.
I started this semester with the understanding that arbitration was meant to be a simpler solution to litigation. I am beginning to rethink that.
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