The Specificity of International Arbitration: The Case for FAA Reform

Abstract

Arbitration by its nature is polycentric: one might more accurately speak of arbitrations in the plural. A wide variety of disputes are included in one category, implicating differences related to the sophistication of the parties, the character of the disputes, and the public interests at stake. The current legal framework for arbitration conducted in the United States attempts to squeeze all types of arbitration into the Procrustean bed of a single set of standards for judicial review. The United States should seriously consider eliminating judicial discretion to review the substantive merits of awards in international cases. The domestically nourished doctrine of "manifest disregard of the law" risks misapplication in cross-border contests. The FAA should be cantonized into separate regimes for domestic and international arbitration, thus permitting the latter to evolve independent of whatever protective legislative and judicial initiatives might be appropriate to address concerns developed in a domestic context.