U.S. Report on Commercial Arbitration - The Impact of Uniform Law on National Law: Limits and Possibilities

Abstract

This is the U.S. national report on "Commercial Arbitration - The Impact of Uniform Law on National Law", prepared on the basis of the questions by the topic’s general reporter, Horacio A. Grigera Naón, for the 1st Intermediate Congress of the International Academy of Comparative Law, which took place in Mexico from November 13 to 15, 2008.

After a brief introduction on the notion of “uniform law” from a U.S. national perspective, Joel Samuels addresses the questions of how uniform law has been incorporated as national law in the U.S. and the degree to which federal law allows parties to require the use of the UNCITRAL Model Law or some other foreign law when an agreement to arbitrate designates a U.S. forum as the seat of the arbitration. He then treats the accessibility of arbitral case law and the extent to which the doctrine of stare decisis applies to arbitral awards in the United States, as well as the extent to which U.S. national laws and courts con be considered “arbitration friendly”.

Jan Kleinheisterkamp summarizes to which extent arbitral awards are subject in the U.S. to court review regarding procedural issues and the merits, including the “manifest disregard of the law” doctrine, and sketches the role of public policy, arbitrability and internationally mandatory rules under U.S. law. He then addresses the questions of how the practice of arbitration influences U.S. case law and legislation; to which degree uniform law can serve as a basis for arbitral decision; how arbitration contributes to the application of uniform law in the United States; and finally how arbitral institutions, international organisations and foreign law have influenced U.S. arbitration laws and arbitral practice in the United States.

The authors conclude that, given the favorable framework that U.S. arbitration law provides for the application of uniform law in the context of arbitration, it can be expected that commercial arbitration will significantly contribute in the future to making the application of transnational uniform law a reality in U.S. legal practice.

Keywords: arbitration, uniform law, comparative law, foreign law, public policy, review of awards

JEL Classification: K12, K20, K33, K41