Eliminating the badges of judicial prejudice and hostility against arbitration has been a gradual doctrinal development, but certainly one that reached fruition with the Supreme Court’s mandate in Mitsubishi. The acceptance of arbitration as an alternative dispute resolution methodology in domestic and international contexts by all stakeholders has advanced the cause of fashioning a dispute resolution framework that helps to meet the contemporary demands of economic globalization. It has mitigated the fissure between an economic order characterized by the development of a transnational monolithic market and a fragmented international legal order.

International commercial arbitration has served to create a temporal bridge in dispute resolution until such time as transnational courts of civil procedure competent to adjudicate private commercial disputes become a viable reality. In fact, it is both genuine and legitimate to ask whether the international community would be best served by adhering to international commercial and investor-State arbitration in lieu of submitting to such tribunals. The reasons that led to arbitration in the first instance, after all, are more relevant than ever.

International commercial arbitration’s proliferation, however, has created new issues that must be addressed if the successful cross-fertilization of legal systems is to be incorporated into international commercial arbitrations, and parties from different juridic and cultural backgrounds are to have their expectations met. At stake is process legitimacy.

The integration process represents international commercial arbitration’s most serious challenge. This difficulty is not conceptual. If it were, then doubtless solutions would of necessity impose themselves and, under this scenario where challenges would only be technical in nature, patience is all that would be warranted. But few things human are ever so simple.

The process of integration, i.e., true “internationalization” of the international commercial arbitration framework, really concerns overcoming challenges that arise from nationalistic cultural prejudices, and that cause central actors to retreat from embracing that which is less familiar or altogether unknown. While international commercial arbitration aspires to be self-sufficient in the sense of being free from the doctrinal shackles of territoriality and nationalism, often its very proponents are hampered because they themselves cannot see sufficiently clearly through lenses that are not tainted by doctrinal territorial cultural prejudices. If international commercial arbitration is to redeem its promise to be truly “international,” then it must integrate doctrines from all cultures. This matters.

Technical principles, in turn, shall have to be assessed based on their workings and not their origins.

The U.S. common law on international commercial arbitration is less than perfect. Its doctrinal content on such issues as arbitrator immunity, uniformity of standard in the context of vacatur proceedings where the U.S. is the arbitral seat, and with respect to the doctrine of competence-competence, to name just a handful of examples here discussed, is far from having encountered its finest workings. It is not the content of the common law, but rather the common law itself as an organic vessel that it is here suggested may serve to contribute best to international commercial arbitration because of the common law’s emphasis on (i) its own critical introspection, (ii) party-initiative, (iii) party-autonomy, and (iv) transparency.

The common law corrects itself. It knows not pride of authorship. The common law not only questions itself, but it does so constantly. It is in this regard a perpetual motion of idea: the perfect physics. The Manifest Disregard of the Law example is a helpful one. Even after the seeming finality of Hall Street, its progeny has continued the dialogue. What may cynically be described as lack of direction and of uniformity, also can be appreciated as a quest for absolute precision that will help keep the conversation alive in a fruitful direction. The common law invites dialogue.

Too few arbitration cases settle before issuance of an award. Lack of transparency and timeliness concerning the assessment and communication of risk is to blame. Preserving and enhancing party-autonomy and party-initiative (two different principles) is here necessary. The qualified and very narrow recourse to U.S. discovery only in the form of 28 U.S.C. § 1782 can and actually has helped. Lack of practical experience and theoretical knowledge with the operative rules cannot stand as grounds to resist the process of internationalism. Transparency is universal and belongs to no single jurisdiction or legal system. The limited use of 28 U.S.C. § 1782 is not tantamount to the importation of U.S. discovery into international arbitration. It is but the importation of distilled and qualified elements of a microcosm of a system of evidence gathering.

The doctrinal development of international commercial arbitration needs new rules of engagement that are conceptual and not territorial, i.e., belonging to a legal system. A non-cultural and non-territorial approach to the “inclusion-internationalization” conversation is to frame the discussion as one concerned with identifying equipoise between party-autonomy and arbitrator discretion. The discussion cannot be one of “common law” versus “civil law.” This construct already has failed.

The proposition that party-autonomy should be subordinate in absolute terms to arbitrator discretion is not satisfactory. Its justification, based on the fiction that because the parties exercised their consent to select the arbitral panel somehow when the panel exercises arbitral discretion the parties too are semiotically being represented by the arbitral tribunal, is a legal fiction that provides little comfort. True participation is mimetic and not semiotic. The inherent power of arbitrator discretion is being asked to do too much work. This excessive reliance on arbitrator discretion has led to the frustration of party expectations, delays in arbitral proceedings, process legitimacy concerns, and increase in costs.

In the narrow space of evidence gathering so as to foster greater transparency that in turn may lead to settlements, the “party-autonomy” and “party-initiative” set forth in the U.S. common law is helpful. The Fed. R. Civ. P. 26(b)(1) standard for self-disclosure and evidence taking, omitting its definition of “relevance,” certainly is better than its IBA evidence gathering counterpart, “relevant to the case and material to its outcome.”

The Fed. R. Civ. P. 26(b)(1) standard would compel an arbitral tribunal to adjudicate the self-disclosure and production obligations by circumscribing this effort to an analysis that requires consideration of the extent to which the evidence sought is (i)

Certainly this talisman is more conducive to being objective, equitable, and responsive to the particularities of each case than a single sentence pronouncement based on “relevance” and “materiality” within a set of rules that does not define either term. It also promotes transparency and, therefore, settlement.

The new paradigms are helpful. Their nature is poignant and suggestive. In fact, they are not all that new. The common law features of introspection, party-autonomy, proportionality, and transparency have been around seemingly forever, and particularly with respect to the self-disclosure and disclosure of evidence. Their tempered, narrow, and selective integration into international commercial arbitration from a common law perspective perhaps is novel.

They are in flux, formation, and transformation such that the very nature of international commercial arbitration is at stake with respect to its future configuration, legitimacy, and efficacy. There is an inherent contradiction between change and permanence. This tension, however, is susceptible to compromise and reconciliation. Lest that in a climate of economic globalization we wake up one day after experiencing uneasy dreams to discover that arbitration has turned into an alternative dispute resolution methodology that defies recognition.

Here Franz Kafka’s tale is certainly helpful. The guarded analysis of the common law’s virtually imperceptible but material transformations is an imperative. These changes, and prospective suggested changes, must not lead to a paradigm that mutilates the fundamental configuration, purpose, and spirit of international commercial arbitration. But change is necessary if international dispute resolution based on party-autonomy is to survive.

The challenge is certainly daunting. Yet, under any analysis, is it not one worth having?