The American Influence on International Arbitration
20 Pages Posted: 24 Oct 2008
Date Written: October 22, 2008
It is indisputable that the international arbitration world is an identifiable epistemic community that transcends national borders, and whose members are shaped by their own experience. Increasingly, that experience reflects an American influence, be it heritage, training, affiliation, or client base. In these remarks, Professor Alford addresses three issues related to the Americanization of international arbitration. The first is whether international arbitration has, in fact, only recently become Americanized. He posits instead that there is always an ebb and flow to the level of the United States' involvement in international arbitration. During the drafting and signing of the 1958 New York Convention, for example, the United States was largely absent. However, in its earlier history the United States was highly involved in establishing pivotal international arbitration agreements, such as the Jay Treaty of 1794. Further ebb and flow of U.S. involvement is illustrated by the establishment of the Permanent Court of Arbitration and the League of Nations, as well as important arbitral doctrines as the Calvo Clause, international minimum standard, and the Hull formula. Second, he addresses whether international arbitration has become Americanized to the exclusion of other influences, disputing that theory by pointing out that developments in Asia (especially China), Latin America, and Europe have been highly influential in shaping the practice of international arbitration. Finally, he argues that U.S. influence in international arbitration is at the highest point it has ever reached, due to nine factors: (1) the rise of the Anglo-American law firm, (2) the increase of American legal training for non-U.S. lawyers, (3) the influence of the common-law adversarial model on arbitration style, (4) the increased acceptance of American discovery, (5) recent developments in choice of law issues, (6) the American influence of venue (situs of arbitration and situs for enforcement), (7) the American mechanism of published precedent, (8) the widespread adoption of English as the lingua franca of international arbitration, and (9) the over-representation of Americans are major arbitration institutions.
Keywords: arbitration, international, international arbitration, New York Convention, Americanization, arbitration agreement, adversarial, arbitration institutions
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