Date of Award

4-14-2014

Degree Type

Dissertation

Degree Name

Doctor of Law (SJD)

Department

Law

First Advisor

Professor Dr. Christian N. Okeke

Second Advisor

Professor Dr. Sophie Clavier

Third Advisor

Professor Dr. Arthur Gemmell

Abstract

It is perhaps fair to suppose that before the earliest civilizations began, humans have traded or exchanged goods and services to either supplement what they possess, or acquire what they could not get through their own efforts. As is the case today, these exchanges often required entering into dealings that could inevitably prove contentious; thus, like all human relationships, disagreements often arose concerning the subject matter of agreements, and what was meant by certain terms of the agreement. Therefore, the question arises: how can such disagreements be resolved in a manner that is fair to all involved, and perhaps preserve the trade relationship?

Today’stransactions and their disputes are quite sophisticated. Entrepreneurs, small businesses, and Fortune 500 companies, both domestic and international, are seeking alternative means to resolve disputes. In today's tough and seemingly unpredictable, economic times, the parties hope to resolve disputes by the least expensive and most convenient manner possible. The use of alternative dispute resolution, or “ADR,” methods, systems, and mechanisms is especially important in the international realm,wherein much of the world favor alternative dispute resolution in lieu of litigation, which is more costly, potentially acrimonious, and therefore, divisive.

With International Commercial Arbitration and mediation as its focus, this dissertation conducts a comparative analysis of the alternative dispute resolution systems between the United States and Scotland. Scotland has a rich history of arbitration and sustains a thriving contemporary arbitration system, which is is underutilized by United States business interests; however, United States practitioners should study the Scottish system, which can be invaluable to American legal and business professionals who are considering international arbitration or mediation. The United States and Scotland have arbitration and mediation arrangements that share similar features that are reflective of the commonalities found in the US and the Scottish cultures; one such feature derives from the Common Law legal system upon which each is in part predicated; there are others, of course, which I will explain later in this work.

This work identifies and explains many of these features, while having enriched my knowledge of Unite States and Scottish ADR; for the reader, I his or her experience mirrors that of mine. The intended audience includes academics, law students, practicing lawyers, business professionals, and anyone desiring to study the increasingly important ADR.

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