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
- 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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- Chapter
- Information
- The American Influences on International Commercial ArbitrationDoctrinal Developments and Discovery Methods, pp. 15 - 37Publisher: Cambridge University PressPrint publication year: 2009