A Question of Fairness: Should Noerr-Pennington Immunity Extend to Conduct in International Commercial Arbitration?
American Review of International Arbitration
As arbitration has supplanted litigation as the primary method of dispute resolution between parties to international commercial relationships, questions have inevitably arisen as to when concepts first developed in litigation should apply to arbitration. Answering these questions is not always an easy task because, on the one hand, the use of arbitration is now a governmentally encouraged form of dispute resolution but, on the other hand, arbitration’s relative informality and private contractual nature still render it suspect in some eyes. This Article is concerned to examine a potent litigation weapon — viz., the Noerr-Pennington doctrine, which generally insulates litigation conduct from later claims — and to determine whether and to what extent it should, by analogy, immunize conduct within an arbitral proceeding from later claims.
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Randy D. Gordon,
A Question of Fairness: Should Noerr-Pennington Immunity Extend to Conduct in International Commercial Arbitration?,
Am. Rev. Int'l Arb.
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