'International Commercial Courts and the United States: An Outlier by Choice and by Constitutional Design?' In International Business Courts – A European and Global Perspective
'International Commercial Courts and the United States: An Outlier by Choice and by Constitutional Design?' In International Business Courts – A European and Global Perspective (Eleven International Publishing, 2019, Forthcoming
24 Pages Posted: 23 Apr 2019
Date Written: April 22, 2019
One of the more unexpected results of globalization has been the diversification and internationalization of commercial legal redress. For decades, arbitration has enjoyed a near-monopoly in the resolution of cross-border business disputes, not only providing parties with procedural norms that are simultaneously innovative and predictable but also offering unparalleled means of enforcing both agreements to arbitrate and final awards via the New York Convention. However, recent years have seen a number of challenges to the hegemony of international commercial arbitration, including the rise of specialized international commercial courts lodged within national judicial systems. This Chapter considers this movement from the perspective of the United States.
In so doing, this discussion not only analyses contemporary motivations for reforming international dispute resolution and whether the United States shares those aims, it also describes developments in the United States to determine how competitive the United States currently is in comparison to those jurisdictions that are actively seeking to attract cross-border commercial litigants to their shores. Although this Chapter does not consider the advantages and disadvantages of forum selling as a matter of policy, the text does discuss whether and to what extent it is possible, as a matter of constitutional and sub-constitutional law, for the United States to increase its competitiveness in the international law market.
Keywords: federal courts, judges, international commercial arbitration, business courts, international mediation, civil procedure, private international law, constitutional law, comparative law, dispute system design, globalization, commercial law
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