The 20th ICC New York Conference, gathering international arbitration practitioners from around the globe, presents an opportune moment to reflect on the United States’ trajectory in the realm of international arbitration since the inaugural conference in 2005.
In 2005, New York established itself as an arbitration-friendly seat for international disputes arising worldwide.
A significant turning point occurred thirty-five years prior, with the 1970 amendment of the Federal Arbitration Act (FAA), which brought the New York Convention into the US legal framework.
This amendment fostered a modern legal environment that favored both domestic and international arbitration.
In the following three decades leading up to the first ICC New York Conference, the United States Supreme Court shifted from a position of defiance to a more deferential approach towards arbitration agreements and the awards derived from them.
Pivotal court decisions expanded the scope of arbitrable issues, such as Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. in 1985.
Additionally, in cases like Moses H. Cone Memorial Hospital v. Mercury Construction Corp. in 1983, courts began to exhibit a pro-arbitration bias when interpreting arbitration agreements.
US case law regarding limited judicial review of international awards began to align with other established arbitration-friendly jurisdictions, including London, Paris, and Geneva.
Despite the US solidifying a reputation as an arbitration-friendly nation, commentators during the early 21st century questioned whether it was uniquely positioned compared to other major arbitration centers, particularly concerning arbitration outside of New York.
Concerns arose about the United States’ perceived defiance of the Competence-Competence principle, where judicial interference in the arbitral process was seen as a potential risk.
Critics highlighted the implications of 28 U.S.C. § 1782, which allowed for discovery assistance in foreign or international proceedings and raised doubts about US courts’ willingness to protect rather than interfere with the arbitration process.
In several cases, US federal courts were divided on whether private arbitral tribunals constituted
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