The Arbitration–Litigation Relationship in Transnational Dispute Resolution: Empirical Insights from the U.S. Federal Courts

This Article explores two dimensions of the relationship between transnational arbitration and litigation. First, what is the relationship between arbitration and litigation as alternative methods of transnational dispute resolution? Some scholars argue that arbitration has largely replaced litigation as a method of transnational dispute resolution; but others suggest that this view may overestimate the ascendance of arbitration and underestimate the continued importance of litigation. Second, what is the role of domestic courts in the transnational arbitration system? While some observers argue that transnational arbitration can operate independently from domestic legal institutions, others emphasize arbitration’s reliance on domestic courts, especially for enforcement.This Article attempts to shed empirical light on both dimensions of the arbitration-litigation relationship in transnational dispute resolution. To do so, it analyzes existing data on transnational litigation and arbitration rates, and an original dataset of 199 U.S. federal court decisions involving arbitral awards covered by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The results confirm that transnational litigation rates have been declining while transnational arbitration rates have been increasing; but it also shows that litigation continues to be a widely used method of transnational dispute resolution, even in contract disputes. The results also suggest that there is considerable post-award judicial involvement in the transnational arbitration process. Although U.S. federal courts appear to enforce arbitral awards more often than not, the evidence suggests that enforcement rates might be lower than widely believed. This may be discouraging from the perspective of one important arbitral value - the finality of awards - but it may be encouraging from the perspective of judicial monitoring of the integrity of the transnational arbitration system

Some Cautionary Notes on the “Chevronization” of Transnational Litigation

In 1993, residents of the Lago Agrio region of the Ecuadorian Amazon sued Texaco, Inc. alleging extensive environmental damage and personal injuries caused by Texaco’s oil extraction operations there. The U.S. District Court for the Southern District of New York dismissed the suit on forum non conveniens grounds in favor of the courts of Ecuador, and the U.S. Court of Appeals for the Second Circuit affirmed in 2002. Meanwhile, Chevron Corp. had acquired Texaco in 2001. After the forum non conveniens dismissal, the Lago Agrio plaintiffs sued Chevron in an Ecuadorian court, which entered a $17.2 billion judgment against Chevron. Since then, the parties have been engaged in an extensive litigation and public relations battle over the enforcement of the judgment, a battle that has reached beyond the United States and Ecuador to countries including Argentina, Brazil and Canada.Although the Chevron-Ecuador case raises many interesting legal issues, this Essay sounds a note of caution about the lessons of the case for transnational litigation. On the one hand, as Part One argues, the case usefully highlights two important transnational litigation trends: the growing multipolarity of transnational litigation and the increasing interaction between the transnational litigation system and other international legal sub-systems. On the other hand, as Part Two argues, the lessons of the Chevron-Ecuador case for law reform are, and should be, limited. Judges, scholars and policymakers may understandably feel pressure to push the law in a particular direction in order to address perceived imperatives that are specific to the Chevron-Ecuador case. But this would risk bypassing the careful evidence-based deliberation needed for sound law reform. The Essay illustrates this risk using examples from the law governing the enforcement of foreign country judgments. The overarching argument is this: Judges, policymakers and scholars should use caution to avoid unduly “Chevronizing” the law of transnational litigation