Pedro J. Martinez-Fraga has applied to the task of producing his second edition of American Influence the same energetic and searching inquiry that made his first edition such a distinctive and profitable read – for academics and practitioners alike. Despite the prescience on display in that edition in alerting the reader to trends both dramatic and subtle, it in no sense attempted to anticipate all that might transpire in the decade following its publication; it did, however, establish a worthy framework upon which to base an eventual sequel.
Many of the pillars Martinez-Fraga had in mind when producing the first edition are still in place in the United States. For example, the shift from judicial hostility to wide acceptance of arbitration has only been fortified. Through cases building on Bremen v. Zapata, Scherk v. Alberto-Culver, and Mitsubishi v. Soler, contracting parties’ autonomy to manage disputes using arbitration has continued to grow. Deferential rules of construction and an enlarging class of subjects amenable to arbitration were, as the author then explored, already evident when the first edition was published. The last decade, however, has seen embedded in the jurisprudence – for better or worse – new types of party autonomy, including that which allows them, with little drafting effort, to delegate to the arbitral tribunal (for conclusive or near-conclusive determination) gateway jurisdictional issues formerly thought reserved to the courts.
The power of parties to make such a delegation if agreeing to do so “clearly and unmistakably” of course had been established in 1995 and cultivated thereafter (the Supreme Court’s First Options v. Kaplan decision and progeny), but the extent to which parties would be deemed to have made such a delegation simply by their agreeing to one or another set of standard arbitration rules was by no means self-evident until quite recently. That courts would become so willing to cede to arbitral tribunals a significant portion of their control function is a breathtaking development, one in which the Supreme Court has recently taken an interest it appears (here, I have in mind the Court’s remand in the Henry Schein decision and its ripple effects).
The first edition’s fascination with the ongoing common law/civil law dialectic in turn remains fully relevant, with much to examine since the first edition was penned. That process has continued apace, generating, inter alia, hybrid modes and soft law texts that the common law lawyer should herald as quite tolerable compromises. One still best avoids the term “discovery” when in the international arbitration arena, yet, as “American Influence” run, the linkage between emerging “international best practices” and the habits of U.S.-based practitioners is difficult to dispute.
Then there is the fragmentary – but, it appears, quite sturdy – edifice forming the backdrop to much of what the first edition examined: The Federal Arbitration Act (FAA). It is archaic, yet it has been sustained by a jurisprudential gloss that has kept it vital and, thus far, immune to replacement. Indeed, since publication of the first edition, approximately thirty additional jurisdictions have adopted the UN Model Law on International Commercial Arbitration (bringing the total to 111), while during that period no plausible effort to replace the 1925 Act has gained genuine traction. This reality, among other effects, has underscored the important role of FAA specialists and of specialized references (such as the work that follows below).
Finally, and importantly for Martinez-Fraga’s second edition, U.S. federal courts have continued to do more than reliably enforce international agreements to arbitrate and to give effect to commercial arbitration awards; they have also exercised their authority to order a person to “give testimony” or “to produce a document or other thing for use in a proceeding in a foreign or international tribunal.” This, of course, is power given by 28 U.S.C. Section 1782. Over the last ten years, courts have been asked to perform this function quite often. The extent to which they have been willing and able to do so, and the resulting implications for the arbitration bar, are subjects to which the second edition devotes considerable ink, informed by the ever-deepening literature on 1782, the now-extensive jurisprudence on that provision, and Martinez-Fraga’s considerable experience in the field as counsel and arbitrator.
To be more concrete, in connection with 1782, the book systematically traverses that which makes the statute operational. When confronting 1782, the questions one might ask are many: Who may petition the court for its help? Does an arbitral tribunal qualify as either a “foreign or international tribunal” and under what circumstances? If an arbitral tribunal may in principle qualify under one or both monikers, is such assistance available equally in relation to investment tribunals and international commercial tribunals? If courts will consider requests in connection with investment tribunals, does it matter whether or not the tribunal in question is operating under the ICSID Convention? If the request comes from someone other than the tribunal (most often the case), should a court take into consideration how the tribunal feels about the request? What is the relationship between 1782 and the subpoena power given tribunals under the FAA? In relation to these and other questions connected to 1782, expect to find illumination in this second edition.
Even shorn of its broad and rich literary and conceptual themes, to which I return below, the book, of course, is about more than the acquisition and marshaling of evidence. The author’s interest in issues bearing on systemic legitimacy is apparent in the other topics also tackled again in this edition. Chapter Seven (Perjury & Arbitration) is an example. International commercial arbitration has only tenuous moorings to domestic legal systems (and mechanisms for disciplining participants) and is thus subject to the devices of unscrupulous or desperate parties. Skillful lawyers steeped in the science of cross examination and related forensic techniques can go some distance toward exposing false evidence. But, as the book brings to mind, there are other crucial elements, such as the relative willingness of authorities at the seat (or another jurisdiction) to punish perjury and the tools available to tribunals to police and sanction misbehavior.
The book’s willingness to again examine Arbitral Immunity (Chapter 3) is a pleasant surprise as well. The tension is not difficult to describe: insurance notwithstanding, arbitrators will not comfortably serve if not given a critical level of protection from the lawsuits of dissatisfied parties; yet, should consumers prejudiced by the sub-standard provision of a service not be able to pursue a remedy? The level of immunity accorded arbitrators has not been unified across borders (US law being among the more arbitrator-protective strands). As students of policy, we are here invited to make choices, and draw analogies. Are arbitrators the functional equivalent of judges? Should we prefer bright line tests, such as that embedded in the more absolute forms of immunity? Arbitrators tend to have answers to these questions at the ready. Having consulted this edition’s Chapter 3, others will be better equipped to decide whether they are correct.
As in his other books, in this work Martinez-Fraga employs a distinctive style that mixes the abstract and the concrete. The result is considerable literary richness. The book also pursues throughout certain recurrent themes familiar to students of systems design: understanding the essential role of party autonomy, harnessing the common law/civil law dialectic, achieving optimal transparency, promoting legal certainty, balancing finality and quality control, and creating and maintaining systemic legitimacy. This book will not be mistaken for a paralegal’s form book. It tackles enduring questions, and does so rigorously.
Much more could be said to introduce what no doubt will become an oft-cited work. Instead an assessment: Prof. Michael H. Graham’s Foreword to the first edition suggested that it was an “exceedingly thoughtful, thorough, and provocative work.” Having seen both editions, let me suggest that the sequel is at least as good as the original (no small feat).
1 “Als Gregor Samsa eines Morgens aus unruhigen Träumen erwachte, fand er sich in seinem Bett zu einem ungeheueren Ungeziefer verwandelt.” Die Verwandlung, Franz Kafka (1915).
* Jack J. Coe, Jr., is a Professor of Law and Faculty Director of the LLM Concentration in International Commercial Arbitration at Pepperdine University, and an associate reporter for the Restatement on the U.S. Law of International Commercial Arbitration. Professor Coe is a prolific academic who is widely published on the specialty of International Commercial Arbitration. He received his BA from the University of California in 1975, a JD from Loyola Marymount in 1979, an LLM from the University of Exeter in 1982, and a PhD (Law) from the London School of Economics and Political Science in 1999.
