The American Influences on International Commercial Arbitration: Doctrinal Developments and Discovery Methods

This text traces the contours of U.S. doctrinal developments concerning international commercial arbitration. It explores international commercial arbitration as a bridge that creates symmetry between what the author perceives as an anomaly arising from the disparities between the monolithic framework arising from economic globalization and a fragmented global judicial counterpart. Specifically, American common law discovery precepts are analyzed through the prism of the fundamental precepts of party-autonomy, predictability, uniformity, and transparency of spender, which the author contends to be the rudimentary tenets of both the American common law procedural rubric and the very principles that international commercial arbitration seeks not only to preserve but to enhance. Therefore, as the author asserts, the discovery process endemic to American common law comports more closely with international commercial arbitration both procedurally and theoretically than with those of the "taking of evidence" methodology commonly used in international commercial arbitrations held under the auspices of arbitral institutional bodies.

1. Introduction; 2. The formation and transformation of the status of international and domestic arbitration in the United States; 3. Shifting paradigm: Wilko v. Swan, Scherk v. Alberto-Culver, and Mitsubishi v. Soler: crafting a level playing field; 4. The taking of evidence v. common law discovery; 5. The gathering of evidence v. common law discovery; 6. What has really happened? The effects of a trilogy examined; 7. The new unorthodox conception of common law discovery in international arbitration; 8. And now how do we avoid 28 U.S.C. Section 1782 in international commercial arbitration?; 9. Perjury & arbitration: the honor system where the arbitrators have the honor and the parties have the system; 10. Developments in the apportionment of jurisdiction between arbitrators and courts concerning the validity of a contract containing an arbitration clause, and transformations regarding the Severability Doctrine; 11. U.S. arbitration law and its dialogue with the New York Convention: the development of four issues; Appendix A. Duelos a Garrotazos; Appendix B. Selected cases; Appendix C. The New York convention, the Federal Arbitration Act, and 28 U.S.C. § 1782; Appendix D. Amendments to 28 U.S.C. § 1782; Appendix E. Selected rules of civil procedure; Appendix F. Geneva Convention of 1927; Appendix G. Selections from the legislative history of the Federal Arbitration Act.