Throughout the 2010s, the Supreme Court of the United States has enforced contractual provisions that force arbitration of disputes and ban class actions. Unsurprisingly, companies quickly went on to instill these mandatory arbitration provisions in their contracts with consumers, employees, and suppliers. A heated debate ensued, bursting out of academic circles and into popular media, over the desirability of such mandatory arbitration revolution. Proponents argued it will improve efficiency, by streamlining dispute resolution and reducing lawyer fees. Opponents argued it will be unfair for the already disadvantaged workers, consumers, and suppliers, depriving them of their day in court. Yet the existing debate too often misses the forest for the trees. Instead of analyzing fairness and efficiency toward parties to a given dispute, we should focus on effects on the market overall.

Notwithstanding Josserand’s ardent and decades-long exhortations, the theory has remained controversial in France; a proposal in the mid-twentieth century to bring it into the Civil Code was abandoned. The Benetton case offers a troubling illustration of the potential for arbitrariness left in Josserand’s wake. Because its courts express themselves in English, Louisiana is a convenient example of the many civil law jurisdictions which pay lip service to abuse of right but scarcely apply it. The common law does just as well without it (as good judges everywhere, unenthusiastic about the expansion of judicial discretion, seem to prefer). The Himpurna case provides an illustration of the unnecessary invocation of abuse of rights.

Chapter eight discusses developments in the apportionment of jurisdiction between arbitrators and courts concerning the validity of contracts containing arbitration clauses, as well as developments pertaining to the severability doctrine and its connection to the U.S. common law on adjudicating challenges to the arbitral tribunal’s jurisdiction. The issue of orthodox and U.S. common law arbitrability as a gateway issue also is reviewed.

The fifth chapter consists of a discussion of the International Bar Association (“IBA”) Rules on the Taking of Evidence in International Arbitration, with reference to the Rules of Arbitration of the International Chamber of Commerce, the Rules of the International Center for Dispute Resolution, and the Rules of the London Court of International Arbitration. This section culminates with a synthesis of international arbitration rules analyzed through the prism of party-autonomy and some of the more salient features comprising the very fabric of the common law. Chapter five as well explores the “Prague Rules.”

Consists of a historical analysis of international commercial arbitration in the United States. It traces the origins of international commercial arbitration to the arbitration agreements that follow the 1687 enactment of the Statute of Fines and Penalties in England, and also references the Act of 1854 in England that vested courts with the discretion to stay a legal proceeding in deference to arbitration agreements. This chapter also documents early U.S. common law authority that was antagonistic to arbitration generally. This introduction in abbreviated manner reviews landmark Supreme Court decisions that most descriptively represent the development of international arbitration and arbitration generally as standing in pari materia with judicial proceedings.

Chapter six primarily focuses on the development and application of the common law doctrine of Manifest Disregard of the Law, and perhaps on its very disappearance. It undertakes this discussion, however, through paradigms exploring methodologies for possibly avoiding 28 U.S.C. §1782.

The third chapter reviews the development and current status of the doctrine of arbitrator immunity-liability. Comparative models between the U.S. common law and civil law jurisdictions are discussed. The role of the Supreme Court’s post-Civil War Reconstruction Era opinions are re-examined as part of the effort of exploring the doctrine’s development. It is asserted that post-U.S. Civil War Supreme Court jurisdiction profoundly has influenced the U.S. common law on arbitrator immunity.

Chapter seven explores the issue of “perjury in arbitration.” It discusses the issue through the lenses of a comparative approach to “truth-telling” and “oath-taking” in non-U.S. jurisdictions, and judicial proceedings.

Introduces a masterful work by Francisco De Goya presently housed in the Prado Museum titled “Duel with Clubs.” The painting’s image is used as a metaphor to capture historical prejudices in the U.S. common law that subordinated arbitration to judicial proceedings. This introduction identifies the four major premises comprising the legacy skeptical U.S. common law view of arbitration generally and international arbitration in particular.

The fourth chapter discusses the role of 28 U.S.C. §1782 in international commercial arbitration. Specifically, “the taking” or “gathering of evidence” is compared and contrasted to common law discovery. Emphasis is placed on the construction of a new paradigm asserting that when submitted to reasoned examination, the taking or the gathering of evidence has failed to generate sufficient timely transparency to contribute to creating appropriate settlement conditions. It is suggested that American common law discovery is configured and organized by many of the very fundamental tenets that international commercial arbitration seeks to preserve and to promote; most notably, party-autonomy and transparency. It also is suggested that arbitral procedural law in the context of “evidence gathering” has undergone a revolutionary transformation such that it shall require continental law practitioners to appreciate narrow and limited fundamental principles of U.S. common law discovery. Chapter four also focuses on the role of party-autonomy in the gathering of evidence, as well as the taking of discovery in international commercial arbitration.

This chapter investigates and compares the attitudes that two different types of dispute settlement bodies dealing with international economic law – investment arbitration tribunals and the WTO Panels and Appellate Body – exhibit towards the decisions of other international adjudicators. Firstly, all the cases citing external precedents are mapped –employing citation and network analysis techniques – to identify the most cited courts and decisions and which issue areas prompt recourse to external precedent. Secondly, the author assesses the importance in identifying guiding precedents of factors such as: the legal regime, the factual matrix, the quality of the decision’s reasoning, and the reputation of the adjudicators that rendered it. Thirdly, he considers whether the invocation of external precedent might pursue goals going beyond the ones traditionally identified in the literature. Finally, the author compares the ways in which external precedent are currently employed by trade and investment adjudicators under a systemic perspective.

The ninth and final chapter analyzes U.S. arbitration doctrinal developments and their dialogue with the New York Convention. Four discrete issues are reviewed: (i) the relationship between non-signatories to arbitration agreements and their obligation to arbitrate, (ii) jurisdiction over an arbitral award debtor as a predicate to enforcement, (iii) the interjection of forum non conveniens in arbitral enforcement proceedings, and (iv) the tensions between rendering states and secondary enforcing states with respect to annulled international arbitration awards.

The second chapter consists of an analysis of shifting paradigms based on critical exploration of the United States Supreme Court’s strictures in Wilko v. Swan, Scherk v. Alberto-Culver, and Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. While this particular story has been told and retold, rarely has it been historically contextualized.

While politicians, scholars, and lawyers argued about whether individuals ought to be subjects of international law and bear rights within the international order, commercial organizations, like the International Chamber of Commerce, began to advocate for the protection of property and investments at the international level. Investors, they argued, ought to be able to hale a state before a neutral tribunal in order to defend their property rights. While refugees did not have access to international courts or tribunals to defend their rights in the interwar period, commercial organizations increasingly did.

Chapter 4 looks at how Latin America has experienced both the negative effects of the international investment law system and tensions when trying to protect Indigenous peoples’ rights while simultaneously trying to attract foreign investment. Enrique Prieto-Ríos and Daniel Rivas-Ramírez present some prominent investment arbitration cases involving Latin American countries and the rights of Indigenous peoples. They conclude that Indigenous peoples in Latin America are invisible to investment arbitration tribunals because international investment arbitration is a self-contained system that does not look beyond international economic law to Indigenous rights or, more generally, human rights. Current negotiations among Canada, New Zealand and the Pacific Alliance offer an opportunity to consider including a chapter for Indigenous people. The addition of New Zealand and Canada as associate members means that they will have to address the rights of Indigenous peoples in some manner for domestic political reasons.

In Chapter 7, we focus on the domain of foreign direct investment (FDI). We claim that states often refrain from sharing sensitive economic information, even though it can be important to adjudicating investment disputes. We demonstrate that properly designed IOs, such as the International Centre for Settlement of Investment Disputes (ICSID), can ameliorate this problem by receiving and protecting sensitive information. We assess our hypotheses using new data on specific pieces of information shared – along with information withheld – from this institution. Specifically, we pair a measure of redactions in publicly released panel reports with qualitative case evidence. We show that key reforms designed to safeguard sensitive information increased the provision of this information and boosted FDI, especially in areas where sensitive information is particularly common. We conclude the chapter by discussing how solving this pervasive issue puts international investment institutions in tension with the normative goals of transparency and accountability.