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American Review of International Arbitration - ARIA - Vol. 13 No. 1 -4 2002
American Review of International Arbitration - ARIA - (U.S. Price)
American Review of International Arbitration - ARIA (International Price)
ARIA Vol. 13 No. 1 - 4 2002
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I. INTRODUCTION
If a pollster asked a random selection of Americans for a one-line verbal
portrait of arbitration, common responses might include the following: (i) private
litigation arising for construction and business disputes; (ii) a mechanism to
resolve workplace tensions between management and labor; (iii) a process by
which finance companies and stock brokers shield themselves from customer
complaints; (iv) a way to level the playing field in deciding commercial
controversies among companies from different parts of the world; (v) the way big
corporations use NAFTA to escape regulation. To some extent all would be
correct.1
Unfortunately, these different varieties of arbitration have all been squeezed
into the same antiquated arbitration statute. Enacted 75 years ago as a simple
procedural device to enforce arbitration in federal courts, the Federal Arbitration
Act (FAA) has now been pressed into service as a body of substantive law that
binds state courts as well, requiring that arbitration agreements be enforced on the
same footing as other contracts.2 The Act is as ill-suited to such use as an allterrain
vehicle. As drafted, the FAA ignores critical distinctions in the level of
judicial supervision suitable to different types of cases. The laissez faire court
scrutiny appropriate to an international proceeding, between sophisticated
business managers with access to competent counsel, may be quite misplaced in a
consumer case, where an arbitration clause might require an ill-informed
I. INTRODUCTION
II. THE ARCHITECTURE OF AMERICAN ARBITRATION LAW
A. Scope of the Federal Arbitration Act
B. The Need for a New Statute
C. Manifest Disregard of the Law
1. The Wilko Dictum
2. Westerbeke v. Daihatsu
III. THE SPECIFICITY OF INTERNATIONAL ARBITRATION
A. Arbitration’s Role in Cross-Border Transactions
B. What Makes Arbitration International?
IV. JUDICIAL SCRUTINY OF AWARDS
A. Statute, Treaty, and Public Policy
B. Why, When, and How Courts Review Awards
1. Alternatives
2. Situs Review
3. Efficiency
4. Vitality of National Substantive Law
V. THE DEVIL IN THE DETAILS: POSSIBLE CONTOURS OF NEW FAA PROVISIONS
A. Optimal Judicial Review for International Arbitration
B. Secondary Matters
1. Jurisdictional Determinations
2. The Impact of State Law
3. Arbitral Venue
4. Modification of Court Scrutiny
C. Consumer and Employment Contracts Revisited
1. The Current Scope of the FAA
2. Making Distinctions
3. Importing the European Experience
D. A Smörgåsbord Approach
VI. FEAR OF REFORM OVERDOSE
A. A Pandora’s Box of Special Interests
B. Random Change or Reasoned Reform?
VII. INVESTOR-HOST STATE ARBITRATIONS
A. Blurred Lines: The NAFTA Experience
B. Judicial Review and Investment Arbitration
C. Political Reaction and Notes of Interpretation
VIII. CONCLUSION
William W. Park - Professor of Law, Boston University. Vice President, London Court of
International Arbitration.
