Binding non-signatories to arbitrate—the United States approach

2021 ◽  
Author(s):  
Andrijana Mišović
Keyword(s):  
New York ◽  
Supreme Court ◽  
Case Law ◽  
The United States ◽  
Arbitration Clause ◽  
Foreign State ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
New York Convention

Abstract Parties’ consent to the arbitration is the basis for tribunal’s authority to decide the case and, as such, is of fundamental importance in any arbitration proceedings. Commercial reality, however, often requires from the so called ‘non-signatories’ of the contract containing an arbitration clause to participate in performance of such contract. Being sensitive to such commercial concerns, the US courts have developed different domestic theories for binding the non-signatories. Recent ruling of the US Supreme Court holds that such domestic theories are also applicable in cases governed by Chapter 2 of the Federal Arbitration Act (incorporating New York Convention). However, the Supreme Court did not resolve the question which law should be applied to the issue of binding the non-signatories. Although US courts might be more inclined to apply federal principles to this issue, this is not the only possible solution based on the current SCOTUS case-law. The US court could also resort to the choice of law analysis and apply appropriate (foreign) state principles for binding the non-signatories. However, different states clearly have different views of the issue of binding the non-signatories, as this article briefly outlines. Thus, the same factual pattern might lead to completely different results.

Insult of Public Officials

2021 ◽  
pp. 388-409
Author(s):  
Christoph Bezemek
Keyword(s):  
United States ◽  
Human Rights ◽  
Supreme Court ◽  
The United States ◽  
Public Officials ◽  
European Court ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
Structural Differences

This chapter assesses public insult, looking at the closely related question of ‘fighting words’ and the Supreme Court of the United States’ decision in Chaplinsky v New Hampshire. While Chaplinsky’s ‘fighting words’ exception has withered in the United States, it had found a home in Europe where insult laws are widely accepted both by the European Court of Human Rights and in domestic jurisdictions. However, the approach of the European Court is structurally different, turning not on a narrowly defined categorical exception but upon case-by-case proportionality analysis of a kind that the US Supreme Court would eschew. Considering the question of insult to public officials, the chapter focuses again on structural differences in doctrine. Expanding the focus to include the Inter-American Court of Human Rights (IACtHR) and the African Court on Human and Peoples’ Rights (ACtHPR), it shows that each proceeds on a rather different conception of ‘public figure’.

The Fourth Amendment's Exclusionary Rule: Blurring the Line Between Rule and Exception

2012 ◽  
Vol 9 (2) ◽  
Author(s):  
Liz Heffernan
Keyword(s):  
United States ◽  
Supreme Court ◽  
Common Law ◽  
The United States ◽  
Deterrent Effect ◽  
Criminal Proceedings ◽  
Exclusionary Rule ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court

The admissibility of unlawfully obtained evidence in criminal proceedings has generated controversy throughout the common law world. In the United States, there has been renewed debate in recent years over the propriety of the judicially-created exclusionary rule as a remedy for violations of the Fourth Amendment guarantee against unreasonable searches and seizures. When defining the scope and purpose of the rule, the US Supreme Court has placed ever increasing emphasis on the likely deterrent effect which suppressing evidence will exert on law enforcement. This article explores the consequent restriction of the exclusionary rule evinced in the contemporary case law including United States v Herring in which the Supreme Court expanded the scope of the so-called "good faith" exception. In conclusion it offers reflection from the perspective of another common law country, Ireland, where the exclusion of unconstitutionally obtained evidence has been the subject of debate.

International Tin Council v. Amalgamet Inc.

1988 ◽  
Vol 82 (4) ◽  
pp. 837-840
Author(s):  
Steven R. Ratner
Keyword(s):  
United States ◽  
New York ◽  
Supreme Court ◽  
The United States ◽  
International Organization ◽  
Legal Process ◽  
Arbitration Clause ◽  
The Supreme Court ◽  
York County

Petitioner, International Tin Council (ITC), brought an action to stay an American Arbitration Association arbitration that was initiated by respondent, Amalgamet Inc., and that arose out of petitioner’s refusal to honor three contracts for the purchase of tin from respondent. Petitioner claimed that it was immune from suit in the United States by virtue of its status as an international organization under British law, and, in the alternative, that the arbitration clause in its contract with respondent was unenforceable. The Supreme Court of New York County (per Parness, J.) dismissed the petition, and held that petitioner lacked any basis under U.S. law for immunity from legal process and that petitioner had consented to the arbitration clause providing for arbitration in New York.

Six Notions of ‘Political’ and the United States Supreme Court

1992 ◽  
Vol 22 (1) ◽  
pp. 1-20 ◽  
Author(s):  
Richard Hodder-Williams
Keyword(s):  
United States ◽  
Supreme Court ◽  
Political System ◽  
United States Supreme Court ◽  
The United States ◽  
Appellate Court ◽  
United States Supreme ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court

Six different notions of ‘political’ are commonly used in discussions of the US Supreme Court. All six are familiar, but the distinctions among them are seldom carefully drawn. The six are: (1) purely definitional, in the sense that the Supreme Court, as an appellate court of last resort inevitably authoritatively allocates values; (2) empirical, in the sense that litigants use the Court to try to achieve their political purposes; (3) influence seeking, in the sense that the justices have a natural desire to prevail in arguments within the court; (4) prudential, in the sense that the justices frequently consider the probable consequences of their decisions; (5) policy-oriented, in the – usually pejorative – sense that justices are said to use the Court and the law as a cover for pursuing their own policy and other goals; and (6) systemic, in the sense that the Court's decisions frequently, as a matter of fact, have consequences for other parts of the American political system. These six notions are considered in the context of recent abortion decisions.

US Supreme Court, Medellín v. Texas: More than an Assiduous Building Inspector?

2009 ◽  
Vol 22 (1) ◽  
pp. 151-169 ◽  
Author(s):  
JOHN KING GAMBLE ◽  
CHRISTINE M. GIULIANO
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Court Case ◽  
Federal Law ◽  
Strong Reaction ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
Supreme Court Case

AbstractThe US Supreme Court case of José Ernesto Medellín, Petitioner v. Texas, decided on 25 March 2008, has generally been seen as a US refusal to follow unambiguous treaty provisions. There has not been such a strong reaction to US behaviour relative to specific treaty obligations since the 1992 Alvarez-Machain case. The Supreme Court majority (six votes to three) held that ‘neither Avena nor the President's Memorandum constitutes directly enforceable federal law’. The uncomfortable – and to many illogical – conclusion reached by the Court was that even though Avena is an ‘international law obligation on the part of the United States’, it is not binding law within the United States even in the light of an explicit presidential order. While the result may be disappointing, the case should be understood in the context of a legal system that (i) makes treaties part of ‘the supreme Law of the Land’; (ii) has developed a complicated concept of self-executing treaties; and (iii) can be hesitant to direct states (sub-national units) to follow presidential directives even on matters of foreign policy.

Protecting Free Exercise of Religion under the Indian and the United States Constitutions: the Doctrine of Essential Practices and the Centrality Test

ICL Journal ◽  
2014 ◽  
Vol 8 (3) ◽  
Author(s):  
Khagesh Gautam
Keyword(s):  
United States ◽  
Supreme Court ◽  
Religious Belief ◽  
The United States ◽  
Supreme Courts ◽  
Free Exercise ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court

AbstractFree Exercise of Religion is a protected constitutional right under the democratic constitutions of both the biggest democracy in the world ie India and the most powerful democracy in the world ie United States of America. Despite textual similarities in the free-exercise clauses of Constitutions of both of these democracies, there is a big difference in the standards of review whereby free exercise claims are judicially reviewed by their re­spective Supreme Courts. Whereas the US Supreme Court does not give much weight to the sincerity of the religious belief and employs the ‘religion-neutral’ test, the Supreme Court of India gives due weight to the sincerity of the religious belief and employs a ‘reli­gion-central’ test known in Indian free-exercise jurisprudence as the Doctrine of Essential Practices. However, a closer examination of judicial opinions on the point discloses that sincerity of religious belief is not entirely unimportant in US free-exercise jurisprudence but still is not given the kind of importance that it is given in India - a nation that is and has historically been religiously diverse.This paper closely examines the free-exercise jurisprudence as developed by the respec­tive Supreme Courts and argues that in view of the changing religious diversity in the United States perhaps time has come to re-examine the reluctance of the American courts to give its due weightage to the sincerity of religious belief while judicially reviewing free-exercise claims. Relying on several judicial opinions of the US Supreme Court and its sub­ordinate courts in the US and by demonstrating their factual and doctrinal equivalents in the Supreme Court of India, this paper argues that free-exercise clauses of both the US and Indian Constitutions protect not just the right to believe in whichever religion an indi­vidual chooses but also acts in pursuit of religion. The belief-act distinction - an idea at the core of much of US free-exercise jurisprudence is not what is truly protected by the free-exercise clause. What is protected indeed are the acts done in pursuance of religious belief. A line has to be drawn between the acts that are sincerely done in pursuance of religion and those that are not. This line has to be drawn by the Courts on a case to case basis. And that is where US free-exercise jurisprudence would be well assisted in examining Indian free-exercise jurisprudence on the point.

Human Rights in India: Historical, Social and Political Perspectives. Edited by Chiranjivi J. Nirmal. [New Delhi: Oxford University Press. 1999. xxxvi, 269, (Bibliography) 18, (Annexures) 34, and (Index) 6 pp. Hardback £12.99 net. ISBN 1–972–87055–4.] Datar on Constitution of India. By Arvind P. Datar. [Nagpur: Wadhwa & Co. 2001. cxxxiii, 1401, (Appendices) 180, and (Index) 92 pp. Hardback £75.00 net. ISBN 0–19–564597–9.]

2002 ◽  
Vol 61 (2) ◽  
pp. 463-492
Author(s):  
Christopher Forsyth
Keyword(s):  
Supreme Court ◽  
The United States ◽  
New Delhi ◽  
Oxford University ◽  
High Courts ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
The World

The Constitution of India is a mammoth instrument—the largest Constitution in the world—with 395 articles, 12 Schedules and 83 amendments. Accounts of the constitutional law of India are thus inevitably very large. The late H.M. Seervai’s multi-volume Constitution of India (4th edn., 1993) is well known and rightly described as “monumental”. But now a new work is making its presence felt. Arvind Datar originally intended to write no more than a Student’s Edition of Seervai. But Seervai refused permission for this project, taking the view, probably with justice, that his work could not be summarised. So Datar decided to write an article by article commentary of the Constitution and Datar on Constitution of India is the result. The resulting book is monumental in its own right. It deals exhaustively with each of the articles of the constitution. The author makes it plain that he could have written a much longer book in that he refers only to decisions of the Supreme Court of India. Only where the Supreme Court has been silent does he refer to relevant decisions of the several state High Courts. None the less, his approach is commendably comparative. The Constitution of the United States is often referred to (and it is in fact reproduced in an appendix) as are decisions of the US Supreme Court. But the work as a whole shows that “Not the Potomac, but the Thames, fertilises the flow of the Yamuna” (Krishna Iyer J. in Samsher Singh v. Union of India AIR 1974 SC 2192 at 2212 cited by Datar on p. 396).

從近期案例剖析美國著作權法合理使用原則新發展

2021 ◽  
Vol 22 (22) ◽  
pp. 1-65
Author(s):  
胡心蘭 胡心蘭
Keyword(s):  
Supreme Court ◽  
The United States ◽  
Copyright Law ◽  
Federal Courts ◽  
Fair Use ◽  
Secondary Use ◽  
Software Interface ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court

美國聯邦最高法院自1994年於Campbell v. Acuff-Rose Music案將「轉化性（Transformativeness）」此一判斷要素帶入美國著作權法合理使用原則後，轉化性之認定幾乎與合理使用之成立畫上等號，扮演著左右判決結果的關鍵角色。惟轉化性要素原本就不在美國著作權法第107條所示之法定要件之列，而係第一項要件「利用行為之目的與性質」下的判斷方式之一，且其內涵混沌不明，如何判斷利用行為是否具有「進一步之目的或不同之特色而增添了新的東西」？美國各級法院之詮釋分歧，莫衷一是。惟在近兩年美國著作權侵權之相關案例中，似乎有將判斷重心回歸美國著作權法第107條合理使用原則之四項法定要件之趨勢，尤其是第四項「利用行為對被利用著作之潛在市場或價值之影響」似又重回「最重要之單一要件」之姿。而美國聯邦最高法院於近日受理Google LLC v. Oracle America案，亦將無可避免地的需再次梳理美國著作權法合理使用原則之脈絡與適用範圍，有望釐清轉化性要素之於合理使用原則應有之地位。本文將先簡述轉化性要素之背景與適用上之分歧，接著分析近兩年相關案例所呈現的新趨勢，以期對著作權合理使用原則有更完整之理解。Since the Supreme Court of the United States introduced the element of ''transformativeness'' in the 1994 case Campbell v. Acuff-Rose Music into the fair use doctrine under U.S. Copyright Law, the finding of transformativeness is almost equal to the finding of fair use. However, transformative elements were not included in the statutory factors of fair use doctrine under the section 107 of the US Copyright Law, and the U.S. federal courts have interpreted the meaning of ''transformation'' respectively, which divided interpretations results in no certainty of which kind of secondary use could constitute as ''transformative use.'' Yet, in the past two years, the relevant copyright infringement cases indicated different trends, and rather than focus on the transformative elements under the first factor of the fair use doctrine, these courts were more willing to consider all four statutory factors of the fair use doctrine, especially the fourth factor - ''The single most important element of fair use.'' Furthermore, the US Supreme Court recently grants certriori to review Google LLC v. Oracle America, in which the Court would address: 1.Whether the copyright protection extends to a software interface; 2. Whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use. As to the second issue, the Court inevitably has to interpret the context and scope of transformative use, and its relationship with other factors of the fair use doctrine, which would lead to solve the dilemma of ''transformativeness'' under U.S. Copyright Law.

scholarly journals The Legacy of Korematsu: A Story of Confinement and Vindication, As Told through Archival Documents

2018 ◽  
Vol 45 (4) ◽  
pp. 3
Author(s):  
Michael Maitland
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Japanese Americans ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
Archival Documents ◽  
Franklin Roosevelt ◽  
Japanese Ancestry

In February 1942, President Franklin Roosevelt issued Executive Order No. 9066 authorizing the exclusion of certain citizens from the west coast of the United States. That order began a cascade of other measures that culminated in the displacement and internment of approximately 120,000 Japanese Americans and people of Japanese ancestry. Fred Korematsu, a native-born citizen of the United States and resident of California challenged the legality of the order in a series of cases and appeals that eventually ascended to the US Supreme Court. In the culmination of those disputes, Korematsu v. United States (hereinafter “Korematsu I”), the Supreme Court upheld his conviction.

Law Clerks and Their Influence at the US Supreme Court: Comments on Recent Works by Peppers and Ward

2014 ◽  
Vol 39 (03) ◽  
pp. 741-757 ◽  
Author(s):  
Mark C. Miller
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Systematic Research ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
And Behavior ◽  
Relationship Of ◽  
Law Clerks

There has been a fair amount of recent scholarly attention to the role and influence of law clerks at the Supreme Court of the United States. This new wave of systematic research began when Todd C. Peppers (2006) published Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk at almost exactly the same time as Artemus Ward and David L. Weiden's (2006) Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court. Then Peppers and Ward (2012) teamed up to produce an edited volume, In Chambers: Stories of Supreme Court Law Clerks and Their Justices, in which each chapter focuses on the relationship of a specific justice and his or her clerks. Together these three works raise interesting questions about how one properly studies the role and power of law clerks at the US Supreme Court. How does one measure the influence of these temporary assistants to the justices? Should sociolegal scholars trust them to help us understand the approaches and behavior of the justices today or in the past or do they have an unrealistic and inflated view of their own contributions? This essay offers a broad overview of what scholars and journalists currently know about the role of clerks at the Supreme Court.

Sign in / Sign up

Export Citation Format

Share Document