Updated Research Guides from GlobaLex

GlobaLex, a very good electronic collection created by the Hauser Global Law School Program at the New York University School of Law, has  updated a number of research guides recently:

• Research Guide to Belgian Law (one of the civil law jurisdictions from which we collect): "Belgium is a federal state with a civil law system and is a member of the European Union. These three qualities basically account for the legal system the country has adopted. The Belgian state was formed as a constitutional monarchy in 1830, as a compromise between French and Dutch claims, appeased by the British government. At that time, it was already largely influenced by the French legal system, and this was laid down in the constitution. The legislative branch was formed by a parliament with two chambers (Chamber and Senate). The King was (and is) the head of state and of the executive branch, but political power is almost entirely in the hands of the government and its prime minister. The judicial branch consists of regular courts in different appeal levels (private and criminal law matters), later an administrative court was added (1948, Council of State). A constitutional court has only been set up in recent time (1980, Court of Arbitration now Constitutional Court). Although the Belgian state has undergone severe constitutional changes since this date, the court system has still not been deeply touched by these yet. In 2014, the late reorganization of the state has restricted the transfer of competences regarding justice to judicial proceedings policy, justice’s houses, first-line legal aid and young people welfare. It has also been reaffirmed that the judicial organization, procedure, execution of court rulings and enforcement of sentences are of federal competence."
• International Commercial Arbitration: "International commercial arbitration is a means of resolving disputes arising out of transnational commercial transactions. It is an alternative to litigation and is controlled primarily by the terms previously agreed upon by the contracting parties, rather than by national legislation or procedural rules. Most contracts contain a dispute resolution clause specifying that any disputes arising under the contract will be handled through arbitration rather than litigation. The parties can specify the forum, procedural rules, and governing law at the time of the contract. Arbitration can be either “institutional” or “ad hoc”. The terms of the contract will dictate the type of arbitration. If the parties have agreed to have an arbitral institution administer the dispute, it is an institutional arbitration. If the parties have set up their own rules for arbitration, it is an ad hoc arbitration. Ad hoc arbitrations are conducted independently by the parties, who are responsible for deciding on the forum, the number of arbitrators, the procedure that will be followed, and all other aspects of administering the arbitration. The types of law that are applied in arbitration include international treaties and national laws, both procedural and substantive, as well as the procedural rules of the relevant arbitral institution. Arbitral awards entered in prior disputes carry persuasive authority but are not binding. Scholarly commentary, or “doctrine,” may also be applied."

English Law Commission Proposals to Ensure UK Remains Centre of International Arbitration

The Law Commission of England and Wales recently released a consultation paper with provisional reform proposals to update the Arbitration Act 1996 and to ensure London remains a world-leading seat in arbitration.

From the description of the project:

"Arbitration is a form of dispute resolution. If two or more parties have a dispute which they cannot resolve themselves, instead of going to court, they might appoint a third person as an arbitrator to resolve the dispute for them by issuing an award. They might appoint a panel of arbitrators to act as an arbitral tribunal."

"Arbitration happens in a wide range of settings, both domestic and international, from family law and rent reviews, through commodity trades and shipping, to international commercial contracts and investor claims against states."

"Arbitration is a major area of activity. For example, the Chartered Institute of Arbitrators, headquartered in London, has more than 17,000 members across 149 countries. Industry estimates suggest that international arbitration has grown by about 26% between 2016 and 2020, with London the world’s most popular seat." 

"The Arbitration Act 1996 (“the Act”) provides a framework for arbitration in England and Wales and Northern Ireland. It has been 25 years since the Act came into force. This anniversary presents a good opportunity to revisit the Act, to ensure that it remains state of the art, so that it provides an excellent basis for domestic arbitration, and continues to support London’s world-leading role in international arbitration."

The consultation paper examines areas such as confidentiality, independence and immunity of arbitrators, jurisdictional challenges against arbitral awards, appeals and more.

Profile of British Columbia's Civil Resolution Tribunal

Legal Evolution, a publication founded in 2017 by Bill Henderson, Professor of Law at Indiana University Maurer School of Law, recently published an article entitled Is access to justice a design problem?

It profiles British Columbia's Civil Resolution Tribunal, Canada’s first online dispute resolution:

"Several years ago, if someone asked me how to solve the U.S. access to justice problem, I would have replied, 'more government funding, more generous philanthropy, and more pro bono hours from lawyers.' With these greater inputs, a lawyer would be available to every citizen needing to access the legal system. Almost as a reflex, I suspect a large number of my lawyer peers would have given the same answer."

"But what’s the likelihood of a 5x or 6x increase in resources? Cf. Legal Services Corporation, '2017 Justice Gap' at 6 (June 2017) (reporting that 86% of the civil legal problems reported by low-income Americans in the past year received inadequate or no legal help.). I’d put it at close to zero."

"Today, I am much more hopeful about our ability to substantially solve access to justice. But it’s likely going to involve a massive redesign of how many types of disputes get resolved, including the possibility of lawyers and courtrooms being engineered out the process. I say this based upon what I have learned about the Civil Resolution Tribunal (CRT), Canada’s first online dispute resolution (ODR) system."

The article features comments made by Shannon Salter, the Chair of the CRT.

Salter was a keynote speaker at the recent annual conference of the Canadian Association of Law Libraries (CALL) in Edmonton. Her May 29, 2019 presentation to CALL is available online.

New International Law Research Guide on Third-Party Funding in Investor-State Dispute Settlement

GlobaLex, a very good electronic collection created by the Hauser Global Law School Program at the New York University School of Law, has published a new research guide on Third-Party Funding in Investor-State Dispute Settlement:

"Third-party litigation funding is a rapidly expanding industry composed of speculative investors who finance legal claims in a number of disputes, in exchange for influence over case management and a contingency in the recovery. As third-party funding now becomes increasingly widespread in investment arbitration, it becomes critically important for policymakers, academics, IGOs/NGOs, arbitral institutions and practitioners alike to understand how third-party funding works in the investment arbitration setting and its implications, as well as ongoing reform efforts addressing the role of this funding mechanism in investor-state dispute settlement (...)"

"Investment arbitration differs from private commercial arbitration in a number of key respects relevant to understanding the implications of third-party funding. First, investment arbitration in the ISDS [investor-state dispute settlement] system involves States as respondents, rather than commercial parties. Therefore, claims and costs are paid from State budgets (i.e. taxpayers) rather than a commercial defendant’s resources or shareholders. Second, ISDS proceeds under a set of substantive rules (BITs) which create rights for investors but primarily only duties for States, meaning States can generally not raise counterclaims and cannot recover in turn (except costs in certain cases) from investor claimants. Third, ISDS takes place under procedural rules (ICSID or UNCITRAL arbitration rules are the primary ones) that allow claimants to select one of the three arbitrators, and which do not allow for appeal."

"Third-party funding in this setting has drawn particular attention because it has a more profound impact on investment policy and a host of other issues, than it necessarily raises in other settings. Third-party funding has become one element in the heated debates about “the purpose, function, and legitimacy of the laws governing foreign investment and investment arbitration.” This is so because the increasing costs, increasingly large monetary awards, and growing number of cases have become matters of recent public concern regarding the ISDS system. Third-party funding raises issues related to conflicts of interest, access to justice, disclosure and transparency, to ongoing investigation of the risk, costs and balance of ISDS procedures."

"This research guide aims to provide the tools necessary for your understanding and researching of third-party funding in the context of investor-state arbitration. A selected bibliography of scholarly writings, publications from IGOs/NGOs and institutional repositories that may inform you about the history, background and development of third-party funding in ISDS and the current debate is included in Section 8."

Law Commission of Ontario Releases Fifth Paper on Defamation

This is a follow-up to the July 27, 2017 Library Boy post entitled Law Commission of Ontario Releases Papers on Defamation.

The Law Commission of Ontario has released a fifth and final background paper as part of its project on Defamation Law in the Internet Age.

The paper is entitled Reputation systems, ADR, Industry Regulation and other Extra-Judicial Possibilities for Protecting Reputation in the Internet Age.

Updated Research Guides From GlobaLex

GlobaLex, the electronic collection created by the Hauser Global Law School Program at the New York University School of Law, recently updated some of its research guides:

• Religious Legal Systems in Comparative Law - A Guide to Introductory Research: "Religious law in this guide is seen as a branch of comparative law and legal study. Further, it is argued here that comparative law itself may most usefully be seen as part of the tradition of legal philosophy. Far from being wholly academic, however, comparative law is a practical approach in the service of 1) legal education 2) the appreciation of treaty implementation and 3) choice of law in the new world of public/private international law known as transnational law. At the conclusion of this guide to sources is a brief discussion of this approach to comparative law (...) It is clear that in areas of private law such as family law, inheritance, and in come commercial transactions, several religious systems influence secular law or are incorporated as a regime which may or must be applied in those areas or to members of certain religious communities. As sources for legal research in these areas are inter-disciplinary and often less known in the world of legal research, an overview of the major world systems, and where and how they are implemented, is offered. "
• Transnational and Comparative Family Law: Harmonization and Implementation: " 'Transnational' (or 'transactional') law is becoming a frequent phenomenon in the practice of law and now occupies a prominent place in the study of international and comparative law. Both academic and practitioner-oriented information sources point to ways to locate and connect national laws with treaties and regimes of harmonization; however, commercial and procedural rules have been, in general, easier to locate than substantive and harmonized law in the family law area. This guide points researchers to significant electronic and print sources in transnational and comparative family law.  The purpose of this guide is to indicate how these international conventions are implemented in selected jurisdictions with some indication of how to locate substantive national law under these same international regimes. An excellent resource on this topic is the Encyclopedia of Private International Law (Jürgen Basedow, et al., eds), Edward Elgar Publishing, 2017. It includes article/entries on the topics dealt with most often in international family law: adoption, child abduction, divorce, marriage, and trusts. "
• International Commercial Arbitration: "International commercial arbitration is a means of resolving disputes arising under international commercial contracts. It is used as an alternative to litigation and is controlled primarily by the terms previously agreed upon by the contracting parties, rather than by national legislation or procedural rules. Most contracts contain a dispute resolution clause specifying that any disputes arising under the contract will be handled through arbitration rather than litigation. The parties can specify the forum, procedural rules, and governing law at the time of the contract. "

Alberta Law Reform Institute Final Report on Arbitration Act: Stay and Appeal Issues

The Alberta Law Reform Institute (ALRI) recently published its Final Report 103 - Arbitration Act: Stay and Appeal Issues:

"A modern Arbitration Act became law in Alberta in 1991. In the two decades since, certain issues have arisen in Alberta case law which affect the ideal functioning of the arbitration system ... The Final Report contains ALRI’s recommendations for reform, which are outlined in this Summary."

"ALRI reaffirms the two fundamental principles underlying the Alberta Act: the principle of party control and the principle of restricted court intervention. ALRI relied on these principles when formulating final recommendations in order to maintain conceptual consistency within the Alberta Act."

"The first issue concerns partial stays of competing court proceedings under section 7(5). Partial stays work well when arbitrable and litigable issues are reasonably separable, which is a prerequisite to the operation of section 7(5). But what should a court do when they cannot be reasonably separated or the competing litigation involves additional parties who are not subject to the arbitration agreement or both? (...)"

"Alberta courts have produced some strikingly divergent lines of case law on issues which essentially concern how accessible arbitral appeals should be. The policy basis of appeals under section 44 of the Alberta Act seems to be unclear, ambiguous or even contradictory. The legislation provides appeal routes and yet undermines them at the same time. ALRI has therefore rethought the role of arbitral appeals in a more fundamental way and proposes a new balance between the competing policy considerations. ALRI recommends that arbitration parties should continue to be able, by agreement, to appeal an arbitral award to the Court of Queen’s Bench on whatever basis the parties decide. This promotes the principle of party control over the arbitral process. Consultation feedback also favoured retaining such consensual appeals. However, ALRI proposes that this should be the only appeal route. ALRI recommends repealing non-consensual appeals on a question of law by leave of the court. Nova Scotia and Quebec similarly do not provide such an appeal route. Strengthening the principle of restricted court intervention in the Alberta Act also enhances the principle of party control. Although consultation feedback was more mixed on this issue, a slight edge of respondents advocated repealing these appeals as well..."

New United Nations Research Guides

The United Nation's Headquarter Library in New York has launched several new research guides to honour the 60th anniversary of the appointment of Dag Hammarskjöld as Secretary-General.

He took the oath of office on April 7 1953 and served as Secretary-General until the 18th of September 1961, when he died in a plane crash while on a peace mission in the Congo.

The guides include:

• a research guide about Dag Hammarskjöld
  
• a guide to online UN information resources 
• a new UN Documentation Research Guide

Lawyers Weekly Profile of Canadian on Court of Arbitration for Sport

This week's issue of The Lawyers Weekly features the article Quick, high-stakes decisions can make for Olympian task.

It profiles Toronto lawyer Graeme Mew, an Olympic Games arbitrator at the Court of Arbitration for Sport: (CAS)

"As one of only 12 people chosen from around the world as arbitrators for the Olympics, Mew was on standby in London to deal with disputes that arose between nations. He was required to report for duty 10 days before the Games even began."

"Mew, of Clyde & Co. in Toronto, has spent his career as a lawyer and a dispute resolution professional in England and Canada. Of the 11 disputes that took place during the Games, Mew heard four appeals — ​in equestrian, canoeing, sailing and modern pentathlon"

The  CAS was created in the 1980s by the International Olympic Committee

In addition to explaining how the arbitration of disputes happens at the Olympic Games, the article also provides information about sports law arbitration in Canada.

Earlier Library Boy posts about law and the Olympics include:

• New Law Library Journal Articles (September 6, 2006): "We have just received Law Library Journal vol. 98, no. 3 (Summer 2006) at the Supreme Court of Canada library. Among the articles that caught my attention: (...) Exploring the Court of Arbitration for Sport: 'The Court of Arbitration for Sport (CAS), recognized as an emerging leader in international sports dispute resolution, was created specifically to address sports-related matters. Since its formation, the CAS has addressed a wide range of sports-related issues, including matters pertaining to the positive drug tests of athletes, the challenges to technical decisions of officials made during competition, and the eligibility of athletes to compete in the Olympic Games. Of significance, CAS awards have been recognized as developing a lex sportiva, that is, a set of guiding principles and rules in international sports law'. " 
• New Internet Research Guide for Olympic Studies (April 2, 2008): "Intute, a British university consortium that offers free online service access to evaluated web resources for education and research, has just published a new subject booklet entitled 'Internet resources for Olympic studies'. The booklet describes resources relating to associations, the history of the Olympic Games, past and future Games, athletes, sports research, event management, and legal issues (arbitration of sports disputes, disability sports, gender equity and doping)." 
• Law and the Olympics (January 6, 2010): "Blogosaurus Lex, the blog from the Legal Resource Centre of Alberta, had a post in December on Law and the Olympics."
• Updated Research Guide on International Sports Law (August 31, 2011): "The GlobaLex collection at the New York University School of Law has just updated its International Sports Law research guide. It looks at the key institutions governing international sports (...) There are sections on doping, women and sports, violence as well as suggested sports law bibliographies, databases and periodicals."
• June 2012 Issue of Legal Information Management on Sports Law (July 3, 2012): "The most recent issue of Legal Information Management, a journal of the British and Irish Association of Law Libraries, is devoted to the Olympics and sports law."

2011 Predictions by Osgoode Hall Law School Dean

Lorne Sossin, the dean of Osgoode Hall Law School in Toronto, makes a number of predictions in a January 1, 2011 post on his blog.

Sossin sees the coming year as a "tipping point" in a number of areas:

• 2011 may be the year of the electronic casebook in law schools
• the trend towards alternatives to the traditional justice system, such as alternative dispute resolution, will accelerate "through diversion programs to mediation and arbitration, collaborative law approaches, on-line public legal education and advice clinics, administrative adjudication and greater prevention and avoidance through quasi-independent agencies in fields such as consumer protection"
• law schools such as his will move more forcefully into what he calls the "pedagogy of experiential learning", increasingly joining theory and practice
  

Law Reform Commission of Ireland Report on Alternative Dispute Resolution

The Law Reform Commission of Ireland has released its Report on Alternative Dispute Resolution: Mediation and Conciliation.

From the press release:

"The Report notes that mediation and conciliation are increasingly being used to try to reach mutually acceptable settlements of civil and commercial cases. These include: big commercial and small consumer claims, employment disputes, family breakdown, medical claims and property disputes. In 2006, The Dubliners reached a mediated settlement with their record label EMI over royalty payments. Earlier this year, when U2’s bass guitarist Adam Clayton obtained a temporary High Court injunction against his former personal assistant, it was stated that her employment contract had a mediation clause, which could allow her to postpone or stop ('stay') any court proceedings ... The Commission’s Report also notes that not all meditations or conciliations end with a settlement. A 2008 High Court dispute in the Commercial Court between pharmacists and the HSE was not resolved by mediation and had to go to a court decision (...) "


"Among the main recommendations in the Report are:

• Legislation along the lines of the Commission’s draft Mediation and Conciliation Bill should be enacted that defines clearly what is meant by mediation and conciliation, including the differences between them (the Bill states that a mediator may assist the parties to reach an agreement, while a conciliator may also make a proposal to the parties to resolve the dispute).
• The key principles of mediation and conciliation should be set out, including: they are voluntary processes; the parties control them; confidentiality of the processes is required; and their quality must be assured by clearly stated standards.
• Mediation and conciliation can be initiated either: (a) independently of court proceedings or (b) where a court suggests them after court proceedings have begun...
• The Government should make an 'ADR pledge,' under which Government Departments and State bodies would be required to consider and attempt mediation or conciliation in appropriate cases before initiating court proceedings ...
• In family law disputes, parents and guardians could agree a 'parenting plan' which would set out the details of day-to-day care and contact arrangements with their children, based on the children’s best interests.
• In a dispute arising after medical care, health care professionals (such as doctors, dentists and nurses) should be able to make an apology without this being an admission of legal liability.
• Other emerging areas of ADR should also be dealt with in the statutory Code of Practice. This would include collaborative practice, where professional advisers actively assist and advise the parties/clients to reach, on a voluntary basis, a mutually acceptable agreement to resolve their dispute (including in a family law dispute). "
  

Nova Scotia Introduces Apology Law

Nova Scotia's new Apology Act, that will come into force on October 1st, 2009, would allow individuals and organizations to apologize for an accident or negative occurrence, without it being used as evidence of liability in a civil legal proceeding under provincial law.

The legislation is especially significant for health care and hospital workers who will now be able to express remorse to families without putting themselves in legal jeopardy.

There are six other provinces that have apology legislation: British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, and Newfoundland and Labrador.

Earlier Library Boy posts about apology laws:

• Apology Acts - Saying 'Sorry' Without Incurring Liability (November 19, 2006): "The province of Saskatchewan will amend its Evidence Act to allow individuals and corporations to offer a sincere apology as part of their dispute resolution process without fear of legal liability... the provincial Justice Minister is quoted as saying: 'Within legal parameters, I think individuals are very concerned about saying anything that might cause them some legal liabilities and we want to clarify that for people(...) We believe that this will allow matters of dispute between citizens to be resolved, in many cases without a lawsuit. Because sometimes it's not the financial compensation, it's the desire for restoration, for an apology, for an acknowledgment that somebody was hurt'."
• Analysis and Critique of Apology Laws (January 14, 2007): "Marlynn Wei of the Yale Law School has just published an article in the Journal of Health Law, 2007 entitled 'Doctors, Apologies, and the Law: An Analysis and Critique of Apology Laws' (available for download via the Social Science Research Network) ..."
• Pros and Cons of Apology Legislation (March 26, 2008): "The most recent edition of The Lawyers Weekly features the article 'Saying sorry: Apology legislation makes it a lot easier' by Ellen Desmond, past chair of the national section for Alternative Dispute Resolution, Canadian Bar Association, and sessional lecturer in dispute resolution at the University of New Brunswick’s faculty of law."
• Ontario Introduces Apology Law (October 7, 2008): "The Ontario government today announced that it is introducing apology legislation that would allow individuals and organizations, such as hospitals, to apologize for an accident or wrongdoing, without it being used as evidence of liability in a civil legal proceeding under provincial law."

UN Launches BASESwiki Alternative Dispute Resolution Website on Business and Human Rights

The United Nations has launched a new alternative dispute resolution wiki on business and human rights called BASESwiki, the Business and Society Exploring Solutions wiki:

"It is a forum where anyone can share, access and discuss information about the non-judicial mechanisms and resources available around the world to help companies and their external stakeholders resolve disputes. It will be a resource for all stakeholders - companies, NGOs, mediators, lawyers, academics and government officials. It will be an interactive forum, built over time by and for its community of users."

"BASESwiki will cover mechanisms based in companies, industry associations, multi-stakeholder initiatives, government agencies, national, multilateral and international institutions."

The collaborative site is broken down into sections on grievance mechanisms, outcomes from alternative dispute resolution efforts, experts, country profiles, and research and analysis documents.

BASESwiki is an initiative of the United Nation Secretary-General's Special Representative on Business and Human Rights and is undertaken in cooperation with the Corporate Social Responsibility Initiative at the Harvard University Kennedy School of Government and with the support and collaboration of the International Bar Association and the Compliance Advisor/Ombudsman of the World Bank Group.

[Source: UN Pulse - United Nations Dag Hammarskjöld Library]

Ontario Introduces Apology Law

The Ontario government today announced that it is introducing apology legislation that would allow individuals and organizations, such as hospitals, to apologize for an accident or wrongdoing, without it being used as evidence of liability in a civil legal proceeding under provincial law.

It would apply to civil lawsuits, administrative proceedings and professional discipline matters. The intention is to remove barriers to settlement discussions.

Originally, the idea for such an act came from a private member's bill introduced in the Ontario legislature by Liberal David Orazietti in April 2008 (see the Library Boy post of May 21, 2008 entitled Ontario to Propose Apology Law).

British Columbia, Saskatchewan and Manitoba, most Australian states and 30 U.S. states have similar laws on their books.

Ontario to Propose Apology Law

After the provinces of British Columbia, Manitoba and Saskatchewan, it appears that Ontario is interested in debating an apology law.

Liberal David Orazietti has sponsored a bill (referred to the provincial legislature's Standing Committee on Social Policy after 2nd reading) that would allow an individual or organization to apologize for an accident or wrongdoing without it being considered an admission of liability admissible in a civil proceeding.

Earlier Library Boy posts about apology laws:

• Apology Acts - Saying 'Sorry' Without Incurring Liability (November 19, 2006): "The province of Saskatchewan will amend its Evidence Act to allow individuals and corporations to offer a sincere apology as part of their dispute resolution process without fear of legal liability... the provincial Justice Minister is quoted as saying: 'Within legal parameters, I think individuals are very concerned about saying anything that might cause them some legal liabilities and we want to clarify that for people(...) We believe that this will allow matters of dispute between citizens to be resolved, in many cases without a lawsuit. Because sometimes it's not the financial compensation, it's the desire for restoration, for an apology, for an acknowledgment that somebody was hurt'."
• Analysis and Critique of Apology Laws (January 14, 2007): "Marlynn Wei of the Yale Law School has just published an article in the Journal of Health Law, 2007 entitled 'Doctors, Apologies, and the Law: An Analysis and Critique of Apology Laws' (available for download via the Social Science Research Network) ..."
• Pros and Cons of Apology Legislation (March 26, 2008): "The most recent edition of The Lawyers Weekly features the article 'Saying sorry: Apology legislation makes it a lot easier' by Ellen Desmond, past chair of the national section for Alternative Dispute Resolution, Canadian Bar Association, and sessional lecturer in dispute resolution at the University of New Brunswick’s faculty of law."
  

Pros and Cons of Apology Legislation

The most recent edition of The Lawyers Weekly features the article Saying sorry: Apology legislation makes it a lot easier by Ellen Desmond, past chair of the national section for Alternative Dispute Resolution, Canadian Bar Association, and sessional lecturer in dispute resolution at the University of New Brunswick’s faculty of law.

Apology legislation allows individuals and institutions to offer an apology as part of their dispute resolution process without fear of legal liability.

The provinces of B.C., Manitoba and Saskatchewan have such laws on their books, as do foreign jurisdictions like Australia and 20 U.S. states.

In the article, Desmond outlines the advantages as well as the drawbacks:

"This legislative trend is the result of the growing body of evidence that apology laws assist in a reduction in both the number of and the time required to settle lawsuits (...)"

"While the benefits of this legislation are clear, concerns exist as well. This is especially true regarding the comprehensive apology legislation that has been adopted in western Canada. In a 2006 discussion paper, the B.C. Ministry of the Attorney General identified some of the difficulties associated with this type of legislation, including the following:

• Public confidence in the courts may be affected if a person admits fault but is subsequently found not liable in a proceeding;
• Insincere and strategic apologies may be encouraged; and
• Apologies might create an emotional vulnerability in some plaintiffs, who may, thereafter, accept settlements that are inappropriately low."

Earlier Library Boy posts on the issue of apology laws include:

• Apology Acts - Saying 'Sorry' Without Incurring Liability (November 19, 2006): "The province of Saskatchewan will amend its Evidence Act to allow individuals and corporations to offer a sincere apology as part of their dispute resolution process without fear of legal liability... the provincial Justice Minister is quoted as saying: 'Within legal parameters, I think individuals are very concerned about saying anything that might cause them some legal liabilities and we want to clarify that for people(...) We believe that this will allow matters of dispute between citizens to be resolved, in many cases without a lawsuit. Because sometimes it's not the financial compensation, it's the desire for restoration, for an apology, for an acknowledgment that somebody was hurt'."
• Analysis and Critique of Apology Laws (January 14, 2007): "Marlynn Wei of the Yale Law School has just published an article in the Journal of Health Law, 2007 entitled 'Doctors, Apologies, and the Law: An Analysis and Critique of Apology Laws' (available for download via the Social Science Research Network) ..."

Report on Alternative Dispute Resolution in Aboriginal Contexts

The Canadian Human Rights Commission has just posted a new report on its website entitled Alternative Dispute Resolution (ADR) in Aboriginal Contexts: A Critical Review:

"In relation to disputes involving Aboriginal peoples, there appear to be three emerging modes of alternative resolution processes. One mode involves Western-based paradigms such as negotiation, conciliation, arbitration and mediation. A second mode involves Indigenous paradigms, which call for the rejuvenation and reclamation of ways in which disputes may be resolved according to the culture and custom of the Indigenous party involved. Due to the diversity and distinctiveness of Aboriginal peoples across the continent, Indigenous methods of dispute resolution are not easily summarized into categories. Rather, they are reflective of the Indigenous teachings from which they come and therefore may be different from one Aboriginal nation to another. A third mode is a combination of the two paradigms".

"All three modes, however, share similar challenges. Whether using an Indigenous paradigm, a Western one or a combination of the two, issues of power, cultural differences, language barriers and the effects and impacts of colonialism need to be addressed. This paper examines several of these common challenges. It examines differing worldviews in relation to dispute settlement and conceptualizes the Indigenous paradigms and Western paradigms based upon these worldview differences. By so doing, this paper will not only add to the literature that distinguishes between Indigenous paradigms of dispute resolution and the "indigenization" of Western paradigms, it will also inform ADR theorists and practitioners. In particular, it will inform them of ways in which Indigenous and Western ADR paradigms may work cooperatively together while simultaneously protecting and respecting worldview and cultural differences".

Analysis and Critique of Apology Laws

This is a follow-up to the Library Boy post of November 19, 2006 entitled Apology Acts - Saying 'Sorry' Without Incurring Liability.

That post discussed Canadian and American statutes that "allow individuals and corporations to offer a sincere apology as part of their dispute resolution process without fear of legal liability".

Marlynn Wei of the Yale Law School has just published an article in the Journal of Health Law, 2007 entitled Doctors, Apologies, and the Law: An Analysis and Critique of Apology Laws (available for download via the Social Science Research Network):

"This article analyzes and critiques apology laws, their potential use, and effectiveness, both legally and ethically, in light of the strong professional norms that shape physicians' reaction to medical errors. Physicians are largely reluctant to disclose medical errors to patients, patients' families, and even other physicians. Some [American] states have passed so-called apology laws in order to encourage physicians to disclose medical errors to patients. Apology laws allow defendants to exclude statements of sympathy made after accidents from evidence in a liability lawsuit. This piece examines potential barriers to physicians' disclosure of medical mistakes and demonstrates how the underlying problem may actually be rooted in professional norms - norms that will remain outside the scope of law's influence. The article also considers other legal and policy changes that could help to encourage disclosure".

Apology Acts - Saying 'Sorry' Without Incurring Liability

The province of Saskatchewan will amend its Evidence Act to allow individuals and corporations to offer a sincere apology as part of their dispute resolution process without fear of legal liability.

On the Canadian Broadcasting Corporation website, the provincial Justice Minister is quoted as saying:

"Within legal parameters, I think individuals are very concerned about saying anything that might cause them some legal liabilities and we want to clarify that for people(...) We believe that this will allow matters of dispute between citizens to be resolved, in many cases without a lawsuit. Because sometimes it's not the financial compensation, it's the desire for restoration, for an apology, for an acknowledgment that somebody was hurt."

The text of the bill, known as the Evidence Amendment Act, 2006, is on the Legislative Assembly website.

The province of British Columbia was the first Canadian jurisdiction to introduce a law providing what is called a "safe harbour" for apologizing. The Apology Act of that province took effect on 18 May 2006.

Several American and all Australian jurisdictions have enacted similar legislation which excludes partial or full apologies from proof of liability.

The Ministry of the Attorney General of British Columbia published a discussion paper on apology laws in January 2006. The province's Ombudsman also reported to the B.C. Legislative Assembly in February 2006 on The Power of an Apology: Removing the Legal Barriers.

Both documents explore the legal, social and psychological issues surrounding public apologies and refer to non-Canadian legislation as well as to scholarly articles on the subject.

World’s Largest Collection of Conflict Resolution Material Goes to California

This is a follow-up to the October 20, 2006 Library Boy post entitled International Dispute Resolution Blog.

The Pepperdine University School of Law in California, which is mentioned in that post, was recently chosen by the American Arbitration Association to "take over its prestigious Library and Information Center, consisting of more than 24,000 titles on arbitration, mediation, negotiation, fact-finding, and other international and domestic dispute resolution procedures".

Pepperdine is home to the Straus Institute, which was ranked the No. 1 dispute resolution program in the United States by U.S. News & World Report.