In the 110th Congress, legislation entitled the “Fairness in
Arbitration Act of 2007” was introduced in both the Senate (S. 1782)
and the House of Representatives (H.R. 3010) and closely
considered.1 Several provisions of the bill raise substantial concerns
for some regarding the legislation’s possible unintended effects for
international commercial arbitration in the United States.
Simultaneously, it can be argued that the risk of unintended
consequences is overstated. Although the bill was not adopted, it is
thought--particularly given the outcome of the recent elections in the
United States--that the bill will be introduced early in the 111th
Session of Congress which commences in January 2009.
The good news for international commercial arbitration is that it is
not the intent of the sponsors of the legislation to change the federal
laws regarding international commercial arbitration in the United
States. In addition, the legislation offered in 2007 may be amended so
that unintended effects for international commercial arbitration are
minimized. Such modifications will not happen of their own accord,
however. This brief editorial lays out the two views of the possible
unintended effects of the bill and how the language of the bill may be
modified to avoid such potential consequences.