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Abstract

The willingness of any national legal system to endorse the process of arbitral adjudication can be measured by whether its governing statutory law and accompanying case law sustain the validity of arbitration agreements and limit judicial supervision of arbitral proceedings and awards—in effect, whether the laws of a nation establish a cooperative relationship between the courts and the arbitral process. On both scores, United States law on arbitration evinces a clear determination to support the process. The development of the law has given the framework of arbitral adjudication its necessary systemic autonomy. Since 1970, when the United States ratified the New York Arbitration Convention, the United States legal system has actively participated in the growing international consensus on arbitration. In fact, federal court decisions have recently assumed a role of preeminence (albeit a somewhat questionable one) in solidifying and advancing that consensus. Invoking its policy favoring international trade and commerce, the United States Supreme Court has guided the federal courts toward an unequivocal endorsement of arbitration for the resolution of private international commercial disputes. Additionally, the Court's most recent pronouncements join in a trend toward less national control of arbitration, viz the development of "anational" arbitration, under which international commercial arbitration is exempted from almost all national legal strictures. Similar developments are at work in United States domestic law. Pursuant to the Federal Arbitration Act, the Court has systematically minimized the juridical restrictions on arbitration—even sacrificing federalism interests to the elaboration of a national policy on arbitration. This unwavering support for arbitration in domestic law, however, raises questions about the integrity of the Court's conception of arbitration. Is arbitration, along with the alternative dispute resolution (ADR) movement, merely being used to achieve greater efficiency in federal judicial administration? As one critic argues, does ADR serve as a means to effectuate a political agenda of deregulation and anti-statism? Also, the recent convergence of the Court's rulings on international and domestic arbitration eliminates formerly meaningful distinctions between separable areas of arbitral activity. The widening proportions of the Court's doctrine appear to have engendered confusion and misunderstanding as to the mission of arbitration and its validity as a dispute resolution mechanism. Moreover, the decisions on international commercial arbitration can be integrated (either as a generating source or as a derivative development) into a burgeoning "internationalist" federal case law on transnational litigation. This case law places primary emphasis upon considerations of comity and attempts to elaborate decisional principles that are responsive to the actual character of transnational litigation. Despite its growing sensitivity to international matters, however, the Court has not proffered uniform internationalist guidance. Consequently, this increasingly significant area of adjudication lacks a stable decisional predicate. Future directions are uncertain; even the course of arbitral "internationalism" now appears to be somewhat confounded. A useful comparison can be drawn between the contemporary status of arbitration in the United States law and that of its Canadian analogue. Prior to 1986, the Canadian law on arbitration embodied much of the traditional Anglo-Saxon distrust of non-judicial dispute resolution. In Canada, arbitral adjudication was not a favored method of dispute resolution, and was one to which parties seldom resorted. Courts, lawyers, and business interests preferred to rely upon the "real thing." In 1986, after lengthy efforts to overcome federalism obstacles, Canada ratified the New York Arbitration Convention and adopted the United Nations Commission on International Trade Law (UNCITRAL) rules on arbitration, thereby making Canada instantaneously and unqualifiedly receptive to international commercial arbitration. To draw a limited parallel to human experience, the current Canadian adhesion to arbitration is akin to a coup de foudre. Canada's sudden wholehearted embrace of arbitration raises questions concerning the basic quality and possible longevity of the relationship. The United States has had a more settled experience with arbitration. Hesitant at first, the United States courtship has resulted in a rather harmonious union between the legal system and arbitration. Contemporary developments in the United States, however, suggest that a critical stage has been reached in the marriage of these contrasting adjudicatory ethics. The flirtation with "anational" arbitration and the unwieldy (perhaps unrealistic) view of the scope of arbitral jurisdiction in domestic law may tax the foundations of the relationship to the point of threatening its stability. The United States experience with arbitration, therefore, could alert Canada to the potential pitfalls of developing an overly exuberant policy on international and domestic arbitration.

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