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Review Article: National Legal Systems and Private Dispute Resolution
Published online by Cambridge University Press: 27 February 2017
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- Book Reviews and Notes
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- Copyright © American Society of International Law 1988
References
1 This rivalry coincides with a trend toward “lawyerizing” in nonjudicial dispute resolution. For a poignant description of the “end of innocence” of international commercial arbitration, see Jan, Paulsson’s note at 1 Arb. Int’l 2 (1985)Google Scholar. For a critique of “the legalization of the arbitration process,” see Auerbach, J., Justice Without Law 109–14 (1983)Google Scholar.
2 When, in 1979, England enacted legislation to limit judicial review of arbitration awards rendered in London, Lord Cullen of Ashborn estimated that this reform would bring England £500 million of “invisible exports” such as arbitrators’and lawyers’ fees. 392 Parl. Deb., H.L. (5th ser.) 99 (1979). See Park, , Judicial Supervision of Transnational Commercial Arbitration, 21 Harv. Int’l L.J. 87 (1980)Google Scholar. The French, in 1981, and the Belgians, in 1985, modernized their arbitration law in an attempt to keep and/or to capture a share of the dispute resolution market. The Swiss recently amended their federal conflicts–of–law procedure to permit foreign parties to limit judicial annulment of an award. See Loi federale sur le droit international prive, Arts. 176–95 (text of Dec. 18, 1987) (not yet in force).
3 “World” may seem rather impertinent. The institute is a program of the American Arbitration Association established “to foster the use of New York City as a venue” for international commercial arbitration (p. xiii).
4 See Craig, W., Park, W. & Paulsson, J., International Chamber of Commerce Arbitration App. I, table 7 (1984)Google Scholar. During the years surveyed (1980–1982), the United States was established as the place of arbitration in less than 5% of the cases, as compared with 33% for France, 27% for Switzerland and 9% for the United Kingdom.
5 Pre-award attachment in support of arbitration increases the winner’s chances of enforcing the award, but it interjects national court proceedings that the parties intended to avoid. Compare McCreary Tire & Rubber v. CEAT, 501 F.2d 1032 (3d Cir. 1974) (holding that the New York Convention prohibits attachment), with Carolina Power &: Light v. Uranex, 451 F.Supp. 1044 (N.D. Cal. 1977) (permitting attachment).
6 In Cooper v. Ateliers de la Motobecane, a dispute between a French and an American corporation, to be arbitrated in Zurich, was tied up in New York courts for several years in deciding whether conditions precedent to arbitration had been met and whether a prejudgment attachment was available. See 49 N.Y.2d 741, 404 N.E.2d 741, 427 N.Y.S.2d 619 (1980), and 57 N.Y.2d 408, 442 N.E.2d 1239, 456 N.Y.S.2d 728 (1982).
7 For a recent discussion of federal preemption in arbitration, see Loumiet’s Introductory Note to the Florida International Arbitration Act, 26 ILM 949 (1987).
8 For example, interest (pp. 28, 155), currency fluctuations (pp. 29, 129) and time bars (pp. 38, 48) are all treated twice.
9 On page 29, we find the statement, “Unless otherwise specified, U.S. courts convert awards made in foreign currency into dollars at the exchange rates prevailing on the date of entry of judgment when the obligation is performable in a foreign country.” However, on page 129, different authors state that the “judgment day rule” is applied if foreign law governs. Is the reader to take these two statements as being consistent when the obligation to be performed abroad has been subjected to U.S. law by the parties’ explicit choice?
10 On page 38, the authors state that New York law requires courts to compel arbitration if the claim is not barred by the New York state statute of limitations. A different author writes (p. 48) that the New York state statute of limitations will not apply to international arbitrations. The reader is left to wonder why the first author omitted telling us that his statement was irrelevant to the book’s topic.
11 See Mitsubishi v. Soler Chrysler-Plymouth, 473 U.S. 614, 637 n.19 (1985).
12 See Mayer, , Mandatory Rules of Law in International Arbitration, 2 Arb. Int’l 274 (1986)Google Scholar.
13 The section entitled “Grounds for Vacating Awards” (pp. 136–47) deals with challenge to awards rendered in the United States by referring to New York Convention defenses to enforcement of foreign awards. Although these treaty defenses constitute grounds for withholding confirmation of awards rendered locally, vacatur of an award has a broader effect under Article V(1)(e) of the New York Convention than does refusal to confirm. Vacatur permits refusal to enforce the award abroad. The distinction is not always clear when courts deal simultaneously with actions to vacate and to confirm arbitration awards. See Northrop v. Triad, 811 F.2d 1265 (9th Cir. 1987).
14 The judgment date rule (mentioned on pp. 29 and 129) can be harsh on creditors when there has been a depreciation of currency between the breach of contract and the award.
15 New York’s statutory interest rate (mentioned on pp. 28 and 155) seems less neutral, and thus less just, than the market rate.
16 The holding of Garrity v. Lyle Stuart, that punitive damages are reserved for courts (discussed at pp. 127–28), opens the door to the multiple adjudication and judicial proceedings that the parties expected to avoid by arbitration. The 11th Circuit has held contra in a case involving the U.S. Arbitration Act. See Willoughby v. Kajima Int’l, 776 F.2d 269 (11th Cir. 1985), aff’g 598 F.Supp. 353 (N.D. Ala. 1984).
17 It is stated (p. 29) that though customary in international arbitration, awards that include reasons are not the general practice in the United States. The reader might want to know whether this is good or bad. Reasoned awards make heightened demands on the intellectual rigor and integrity of the arbitral process. They also stimulate the development of a lex mercatoria in which awards become part of an objective corpus of international arbitral case law. On the other hand, reasons may serve as dangerous invitations to judicial annulment of the award, where a losing party is seeking a peg on which to hang a challenge to the award.
18 See Mitsubishi v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985) (antitrust); and Scherk v. Alberto-Culver, 471 U.S. 506 (1974) (securities regulation).
19 See 9 U.S.C. §207 (1982) (providing a 3-year statute of limitations for confirmation of awards in international disputes, as opposed to 1 year in domestic cases).
20 See W. M. Reisman’s review of installment 7 of the Encyclopedia of Public International Law, 81 AJIL 263, 269 (1987).
21 For example, in discussing laches on page 53, reference might have been made to the abundant English law on time bars and court sanctions imposed on dilatory parties. See, e.g., Mustill, M. & Boyd, S., Commercial Arbitration 130, 159–87 and 433–34 (1982)Google Scholar.
22 Notable examples of their academic bent include speculation that the origins of the “delocalisation theory,” which would cut arbitration loose from the law of the place of the proceedings, lie in the state immunity doctrine announced in the 1958 Aramco award (p. 58). Historical material is provided on the 1923 Geneva Protocol, the 1928 Bustamante Code and the background (from 18991) of the role of the United Nations in arbitration. Ironically, one of the coauthors has on occasion complained about the academic approach to the study of international commercial arbitration. See Hunter, , Book Review, 51 Arbitration 290, 293 (1985)Google Scholar.
23 Much ink has been spilled in the debate on whether international arbitration should be set free from procedural norms of the place of the arbitral seat. For a summary of the discussion on “floating awards” and “drifting arbitration,” see Park, , Lex Loci Arbitri and International Commercial Arbitration, 32 Int’l & Comp. L.Q. 21 (1983)CrossRefGoogle Scholar; and the reply by Paulsson, , Wings of Silence, id. at 53 Google Scholar.
24 Cf. Craig, , International Ambition and National Constraints in I.C.C. Arbitration, 1 Arb. Int’l 49 (1985)Google Scholar.
25 The English version of Article V(1) of the Convention states that an award “may” be refused recognition and enforcement if set aside under the law of the place where rendered. Theoretically, national courts of a party to the Convention could enforce an annulled award, although this does not happen in practice. The equally authoritative French text is more ambiguous: “La reconnaissance et l’exécution de la sentence ne seront refusées . . . que si . . . la sentence a été annulée ou suspendue . . .” (Recognition and enforcement will not be refused . . . unless . . . the award was annulled or suspended).
26 Reference might have been made to the cases cited in S.A. Mineracao Da Trindade-Samitri v. Utah Int’l, 745 F.2d 190 (2d Cir. 1984).
27 The authors’ “permeability” notion (p. 169) may not be entirely consistent with their statement (p. 172) that “arbitration . . . can be detached from any context of state sovereignty” (l’arbitrage . . . peut etre detache de tout lieu de souverainete).
28 See the “prospective waiver” and “second look” doctrines announced in Mitsubishi, 473 U.S. a t 637 n. 19.
29 The first part of Article V of the New York Convention provides that an award annulled where rendered may be refused recognition abroad. Under the second part of Article V, a country may refuse enforcement of a foreign award that violates its public policy.
30 David, R., L’Arbitrage Dans Le Commerce International 9 (1982)Google Scholar.