Originally from World Arbitration And Mediation Review (WAMR)

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LEGISLATIVE THREATS TO THE HISTORICALLY

STRONG RELATIONSHIP BETWEEN
DOMESTIC AND INTERNATIONAL
ARBITRATION IN THE U.S.

Rachael D. Kent*

I. INTRODUCTION

For more than eighty years, domestic and international
arbitration in the United States have enjoyed a harmonious and
mutually-supportive relationship. Throughout this period, both
legal regimes have been governed by a single arbitration statute,
the Federal Arbitration Act ("FAA"). As a result, many important
aspects of the legal framework governing arbitration in the U.S. --
including issues related to the non-arbitrability of particular noncontractual
claims, the allocation of authority among courts and
arbitrators, arbitrator independence and impartiality, and the
enforcement of arbitration agreements and awards, to name just
a few -- have developed in parallel for domestic and international
arbitration.

At the same time, the development of the global system of
international arbitration has served as a catalyst for
developments in American law and practice. Many of the
important steps in the development of a vibrant arbitration
culture in the U.S. -- including passage of the FAA itself -- were
preceded by major international efforts to encourage
development of an effective system for the resolution of crossborder
commercial disputes. These efforts include the adoption
of the Geneva Protocol and Geneva Convention in the 1920s, the
New York Convention in 1958, and more recent efforts to define
standards with regard to arbitrator independence and
impartiality -- all of which played significant roles in the
development of U.S. arbitration law.

Conversely, in other cases, U.S. arbitration law and practice
has led the way for the broader international arbitration
community. The prime example of this effect is the U.S. Supreme
Court’s ground-breaking decisions on arbitrability, which
narrowed the scope of disputes defined as "non-arbitrable" and
opened the way for arbitration of statutory claims, including
claims alleging violations of antitrust and securities laws. Other
countries followed suit, and today there is broad consensus that
these claims are capable of resolution by arbitration.