The Exuberant Pathway to Quixiotic Internationalism: Assessing the Folly of Mitsubishi

01 Jan 1986

The writing on international commercial arbitration often is replete with statements affirming the necessity and advocating the progression of the institution. Indeed, the transnational consensus on commercial arbitration is exceptional - a rare example of viable cohesion in the fragmented arena of international affairs. The unifying spirit of the 1958 New York Arbitration Convention, the uniformity of approach among national courts to the implementation of the Convention, and national legislation supportive of the emerging international consensus on arbitration attest to a willingness to eradicate parochial concerns, to respond to felt needs, and to achieve functional international cooperation.

The United States officially joined the transnational ranks with its ratification of the New York Arbitration Convention in 1970 and the United States Supreme Court's 1974 pronouncement in Scherk v. Alberto-Culver Co. In Scherk, seemingly inspired by the incorporation of the Convention into United States law, the Court began to articulate the more specific contours of a United States policy toward private international law matters. In Scherk and prior, like-minded decisions, courts viewed international commercial transactions as beneficial to both the national interest and the world at large. Accordingly, an international commercial transaction, although involving a United States party and interests, was exempt from the reach of some domestic law imperatives.

Since 1925, the Scherk Court emphasized, the United States had endorsed a policy strongly favoring arbitration; the ratification of the Convention strengthened that policy. Although the precise import of the Scherk doctrine needed further refinement, what formerly had been a fragile and unanchored international consensus in United States policy, supported primarily by foreign legislation, now was emerging as a centerpiece of United States law - the seedbed for elaborating a comprehensive United States policy toward private international law matters.

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth represents the long-awaited sequel to Scherk. This decision gives additional substance and definition to the nascent policy on private international law matters, specifies how that larger policy relates to transnational commercial arbitration in particular, and suggests the Court's initial position on the vexing question of "anational" arbitration.