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The American Influences on International Commercial Arbitration
Doctrinal Developments and Discovery Methods

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  • Date Published: January 2014
  • availability: Available
  • format: Paperback
  • isbn: 9781107679375

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  • This text traces the contours of U.S. doctrinal developments concerning international commercial arbitration. It explores international commercial arbitration as a bridge that creates symmetry between what the author perceives as an anomaly arising from the disparities between the monolithic framework arising from economic globalization and a fragmented global judicial counterpart. Specifically, American common law discovery precepts are analyzed through the prism of the fundamental precepts of party-autonomy, predictability, uniformity, and transparency of spender, which the author contends to be the rudimentary tenets of both the American common law procedural rubric and the very principles that international commercial arbitration seeks not only to preserve but to enhance. Therefore, as the author asserts, the discovery process endemic to American common law comports more closely with international commercial arbitration both procedurally and theoretically than with those of the “taking of evidence” methodology commonly used in international commercial arbitrations held under the auspices of arbitral institutional bodies.

    • Takes a novel approach by asserting that U.S. common law discovery should be incorporated into international commercial arbitration
    • Identifies the key contributors of U.S. doctrinal developments in commercial arbitration as all foundational case-law is examined
    • The scholarship and novel thesis embodied in this work will be of benefit to both practitioners and academics
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    Reviews & endorsements

    "This is an ambitious and innovative approach to a timely topic. It warrants careful attention by all those concerned with international dispute resolution."
    --Gary Born, Wilmer Cutler Pickering Hale and Dorr, LLP and author, International Commercial Arbitration (2008)

    "An excellent scholarly work that touches upon a controversial issue confronting international commercial arbitration: whether and how to incorporate discovery approaches into the arbitration world."
    --Jonathan Schiller, Managing Partner, Boies, Schiller & Flexner LLP

    “Pedro Martinez-Fraga’s book is a magnificent portrait of the influence of American legal practice on the conduct of international commercial arbitration. Learned but highly readable, the book does not merely trace the deep impact that developments in international arbitration has had on U.S. law (a treatment that alone makes reading this book worthwhile), but, as the book’s title suggest, shows the impact of traditional U.S. litigation principles and practice on the development of international commercial arbitration. To suppose that the broad availability of discovery in aid of arbitration is the only agent of influence in this direction would be deeply mistaken. While giving that aspect of U.S. influence its full due, Martinez-Fraga moves on to other and no less important terrain of influence, such as the demarcation between arbitral and judicial authority on matters of arbitrability, the binding effect of arbitration agreements and awards on non-signatories, and the interaction between the annulment of awards in the place of arbitration and their recognition or enforcement elsewhere. I unreservedly recommend this book to anyone seriously interested in the interface between international commercial arbitration and U.S. legal practice.”
    --George A. Bermann, Gellhorn Professor of Law & Jean Monnet Professor of European Union Law, Columbia University School of Law


    “For those seeking an ideal combination of theoretical and practical insights to international commercial arbitration, Martinez-Fraga´s book (“The American Influence on International Commercial Arbitration”) offers a thought-provoking discussion of issues that have been the subject matter of considerable debate and controversy among practitioners, judges, and scholars grounded in different legal traditions.

    Tracing the evolution of the concept of “arbitrability”, from Wilko v. Swan to McMahon, the author introduces the reader to the “transformation” of international commercial arbitration into the preferred method for settling international commercial disputes. And the author draws on a rigorous conceptual thinking and a clear theoretical framework in order to discuss the basic tenets which, in his view, distinguish the modern arbitral process from more traditional judicial processes: party autonomy, predictability, party initiative, and discrete and insular judicial intervention in support of arbitration.

    Thus, Martinez-Fraga draws on his experience as a seasoned practitioner to present compelling arguments on the use and misuse of pretrial 28 U.S.C. Section 1782(a) type of discovery in the arbitration process. He also relies on a thorough analysis of the most relevant case-law, as well as detailed study of the most relevant arbitration rules (e.g., ICC, ICDR, and LCA Rules) in order to make the case for what Martinez-Fraga envisions as a “new orthodox conception of common law discovery in international arbitration”.

    “The American Influence on International Commercial Arbitration” is not limited to discuss the Martinez-Fraga´s own perspectives on “the taking and gathering of evidence”. Nor should this book be regarded, as the title seems to suggest, as the author´s predilection for the proper use of a so-often misunderstood “American style” pretrial discovery. This book also discusses topical issues on international commercial arbitration, such as the use of perjury in arbitration, the proper allocation of arbitral and judicial jurisdiction for determining the validity of the arbitral clause and the main contract containing such clause (discussing the most recent jurisprudential trends on the severability doctrine), and the challenge of the arbitral awards on grounds of “manifiest disregard of the law”. Whether you agree with the author´s views, Martinez-Fraga´s book provides a thoughtful and thorough response to questions which, as the author acknowledges, being far from certain or definitive, tend to “chang[e] at times in fascinating ways that appear to defy man’s wit”.
    --Alejandro M. Garro, Professor of Comparative Law, Columbia University

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    Product details

    • Date Published: January 2014
    • format: Paperback
    • isbn: 9781107679375
    • length: 434 pages
    • dimensions: 254 x 178 x 22 mm
    • weight: 0.75kg
    • availability: Available
  • Table of Contents

    1. Introduction
    2. The formation and transformation of the status of international and domestic arbitration in the United States
    3. Shifting paradigm: Wilko v. Swan, Scherk v. Alberto-Culver, and Mitsubishi v. Soler: crafting a level playing field
    4. The taking of evidence v. common law discovery
    5. The gathering of evidence v. common law discovery
    6. What has really happened? The effects of a trilogy examined
    7. The new unorthodox conception of common law discovery in international arbitration
    8. And now how do we avoid 28 U.S.C. Section 1782 in international commercial arbitration?
    9. Perjury and arbitration: the honor system where the arbitrators have the honor and the parties have the system
    10. Developments in the apportionment of jurisdiction between arbitrators and courts concerning the validity of a contract containing an arbitration clause, and transformations regarding the Severability Doctrine
    11. U.S. arbitration law and its dialogue with the New York Convention: the development of four issues
    Appendix A. Duelos a Garrotazos
    Appendix B. Selected cases
    Appendix C. The New York convention, the Federal Arbitration Act, and 28 U.S.C. § 1782
    Appendix D. Amendments to 28 U.S.C. § 1782
    Appendix E. Selected rules of civil procedure
    Appendix F. Geneva Convention of 1927
    Appendix G. Selections from the legislative history of the Federal Arbitration Act.

  • Author

    Pedro J. Martinez-Fraga
    Pedro J. Martinez-Fraga is currently an adjunct professor of law at the University of Miami School of Law, where he teaches transnational litigation and arbitration. Mr Martinez-Fraga is a full Visiting Professor at the University of Navarra in Pamplona, Spain, and President of the Global Dispute Resolution Center of the Maiestas Foundation, with venues in Pamplona, Spain, and Beijing, China. Mr Martinez-Fraga has lectured in a dozen non-US law schools on private international law. He has authored more than twenty peer-reviewed articles and three books on private international law. He has also served as co-editor of and contributing author to a fourth text in this field. Mr Martinez-Fraga is on the list of counsel for victims and defendants of the International Criminal Court at the Hague. He received his J.D. from Columbia University (Harlen Fiske Stone Scholar) and a B.A. from St. John's College, Annapolis (Highest Honors). He was recognized by Florida Super Lawyers as one of the top 100 lawyers in 2006, 2007, and 2008 and was featured as the cover story in the 2006 inaugural issue of Florida Super Lawyers magazine. In addition, he was the recipient of the 2005 Most Effective Lawyer Award for International Law from the Daily Business Review and was a finalist for the same award in 2006.

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