The American Influences on International Commercial Arbitration Doctrinal Developments and Discovery Methods
Book contents
- Frontmatter
- Contents
- Table of Citations
- Acknowledgments
- Foreword
- Preface
- 1 Introduction
- 2 The Formation and Transformation of the Status of International and Domestic Arbitration in the United States
- 3 Wilko v. Swan, Scherk v. Alberto-Culver, and Mitsubishi v. Soler: Crafting a Level Playing Field
- 4 Procedural Change and 28 U.S.C. §1782: 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 & 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
- Conclusion
- Appendix A Duelo 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
- Index
- References
3 - Wilko v. Swan, Scherk v. Alberto-Culver, and Mitsubishi v. Soler: Crafting a Level Playing Field
Published online by Cambridge University Press: 11 July 2009
Book contents
- Frontmatter
- Contents
- Table of Citations
- Acknowledgments
- Foreword
- Preface
- 1 Introduction
- 2 The Formation and Transformation of the Status of International and Domestic Arbitration in the United States
- 3 Wilko v. Swan, Scherk v. Alberto-Culver, and Mitsubishi v. Soler: Crafting a Level Playing Field
- 4 Procedural Change and 28 U.S.C. §1782: 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 & 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
- Conclusion
- Appendix A Duelo 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
- Index
- References
Summary
WILKO v. SWAN
Despite increasing juridic consciousness concerning virtues endemic to arbitral proceedings, the twin domestic badges of doctrinal hostility against arbitration were not readily dispelled and thus required a case controversy that would appropriately frame an issue that may prove to be determinative. Nothing short of a direct analysis of whether a statutory right is appropriate for arbitration would suffice if the analytical rubric was to be materially reconfigured. This very question was raised and thoroughly addressed by the Supreme Court in the paradigm-setting case of Wilko v. Swan. Indeed, Wilko’s prominent place in the Supreme Court's development of arbitration law is confirmed by even a cursory glance at the interest it has garnered in the academe.
The facts in Wilko seem tailor made for a re-examination of arbitral proceedings that would place alternative dispute resolution on a level playing field with judicial recourse. The plaintiff securities purchaser brought an action against a securities brokerage firm to recover damages pursuant to Section 12(2) of the Securities Act of 1933. The complaint alleged that plaintiff had been defrauded by the brokerage firm through the instrumentalities of interstate commerce into purchasing 1,600 shares of the common stock of Air Associates, Inc. based upon false representations. Specifically, the complaint averred that the defendant had represented that “pursuant to a merger contract with the Borg Warner Corporation, Air Associates' stock would be valued at $6.00 per share over the then-current market price, and that financial interests were buying up the stock for the speculative profit.”
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- Information
- The American Influences on International Commercial ArbitrationDoctrinal Developments and Discovery Methods, pp. 15 - 37Publisher: Cambridge University PressPrint publication year: 2009
References
, Unraveling the Mystery of Wilko v. Swan: American Arbitration Vacatur Law and the Accidental Demise of Party Autonomy, 7 Pepp. Disp. Resol. L.J. 1 (2007)Google Scholar
, The Federal Arbitration Act: The Supreme Court's Erroneous Statutory Interpretation, Stare Decisis, and a Proposal for Change, 53 Ala. L. Rev. 789 (2002)Google Scholar
, The Arbitrability of Federal Securities Claims: Wilko's Swan Song, 42 U. Miami L. Rev. 203 (1987)Google Scholar
, Learning to Live with the Federal Arbitration Act: Securities Litigation in a Post-McMahon World, 37 Emory L.J. 99 (1988)Google Scholar
, Commercial Arbitration in the Supreme Court 1983–1995: A Sea Change, 31 Wake Forest L. Rev. 1 (1996)Google Scholar
, Turning Back the Clock: A Judicial Return to Caveat Emptor for U.S. Investors in Foreign Markets, 19 N.C.J. Int'l L. & Com. Reg. 313 (1994)Google Scholar
, Choice of Law Considerations in the Validity & Enforcement of International Forum Selection Agreements: Whose Law Applies?, 9 UCLA J. Int'l L. & For. Aff. 43 (2004)Google Scholar
, U.S. Supreme Court Subordinates Enforcement of Regulatory Statutes to Enforcement of Arbitration Agreements: From The Bremen's License to the Sky Reefer's Edict, 30 Vand. J. Transnat'l L. 59 (1997)Google Scholar
, Appealability of a District Court's Denial of a Forum-Selection Clause Dismissal Motion: An Argument Against “Cancelling Out” The Bremen, 57 Fordham L. Rev. 463 (1988)Google Scholar
, The Perils of Contract Procedure: A Revised History of Forum Selection Clauses in the Federal Courts, 82 Tul. L. Rev. 973 (2008)Google Scholar
, Rediscovering Subjectivity in Contracts: Adhesion and Unconscionability, 66 La. L. Rev. 123 (2005)Google Scholar
, Viva Zapata!: Toward a Rational System of Forum-Selection Clause Enforcement in Diversity Cases, 66 N.Y.U.L. Rev. 422 (1991)Google Scholar
, My Way and the Highway: The Law and Economics of Choice of Forum Clauses in Consumer Form Contracts, 86 Nw. U.L. Rev. 700 (1992)Google Scholar
, The Public Policy Exception to the Enforcement of Forum Selection Clauses, 34 Duq. L. Rev. 1009 (1996)Google Scholar
, Forum Selection Clauses: Substantive or Procedural for Erie Purposes, 89 Colum. L. Rev. 1068 (1989)Google Scholar
, Arbitration and the Harmonization of International Commercial Law: A Defense of Mitsubishi, 39 Va. J. Int'l L. 647 (1999)Google Scholar
Pietrowski, Enforcing International Commercial Arbitration Agreements Post-Mitsubishi v. Soler, 36 Am. U.L. Rev. 57 (1986)Google Scholar
, EMERGING DILEMMAS IN INTERNATIONAL ECONOMIC ARBITRATION: Mitsubishi, Investor-State Arbitration, and the Law of State Immunity, 20 Am. U. Int'l L. Rev. 907 (2005)Google Scholar
, CHOICE-OF-LAW PROBLEMS IN INTERNATIONAL COMMERCIAL ARBITRATION. By Horacio A. Grigera Naon, 16 Fordham Int'l L.J. 946 (1993)Google Scholar
, Arbitrating Novel Legal Questions: A Recommendation for Reform, 105 Yale L.J. 1927 (1996)CrossRefGoogle Scholar
, Rodriguez de Quijas V. Shearson/American Express, Inc.: A Green Light to Arbitration, a Yellow Light to Investors, 64 Tul. L. Rev. 1312 (1990)Google Scholar
, RESOLUTION OF DISPUTES IN THE NEW MILLENNIUM: PERCEPTIONS, MYTHS AND THE LAW: COMMENT ALTERNATIVE DISPUTE RESOLUTION: “WAIVER OF TRIAL” CLAUSE MANDATING ARBITRATION OF SECURITIES DISPUTES SHOULD REQUIRE THE APPLICATION OF STATE LAW, 31 St. Mary's L. J. 1039 (2000)Google Scholar
, Securities Arbitration: Is Required Arbitration Fair to Investors?, 24 New Eng.L. Rev. 389 (1989)Google Scholar
, Rodriguez de Quijas v. Shearson/American Express, Inc.: Is Securities Arbitration Finally Above Suspicion?, 78 Ky. L.J. 839 (1990)Google Scholar
, Arbitration of Securities Disputes: Rodriguez and New Arbitration Rules Leave Investors Holding a Mixed Bag, 65 Ind. L.J. 697 (1990)Google Scholar
, RODRIGUEZ DE QUIJAS V. SHEARSON/AMERICAN EXPRESS, INC. AND LAMPF, PLEVA, LIPKIND, PRUPIS & PETIGROW V. GILBERTSON: BLURRING THE DISTINCTIONS BETWEEN THE SECURITIES ACTS AND AMONG SECURITIES CLAIMS, 42 Case W. Res. 659 (1992)Google Scholar