States as Global Proceduralists

Kathleen Claussen*

Although scholars have devoted thousands of pages to understanding federalism and its impact on public lawmaking, certain procedural issues have gone largely unexplored. Now core to procedure, arbitration is a space in which states have been particularly active in an unexpected way: taking the lead in the regulation of transnational arbitration. The lack of scholarly attention to procedural rules in cross- border arbitration is striking given the growth in commercial arbitration in the last thirty years and the important role that international contracts play in our economic and legal systems. This Article begins to fill that gap.

Despite the expectation that federal law or international agreements dominate this domain, state statutes play a pivotal role, covering a range of procedural and ethical rules, and filling the regulatory vacuum. By delving into their legislative histories, statutory frameworks, and into an empirical analysis of the case law, this Article analyzes how states are asserting their authority and courts are struggling to accommodate these moves. Ultimately, the state-led regulatory framework for transnational commercial arbitration in the United States sets a precedent for how subnational entities can influence international legal practices. This localized yet globally relevant regulatory approach provides valuable insights into the evolving dynamics of arbitration law and the broader implications for federalism and international regulatory cooperation. As traditional frameworks for federalism and state behavior fall short in explaining the nuanced and strategic procedural legislation observed in the regulation of transnational commercial arbitration, this Article also proposes a revised theoretical approach that incorporates elements of jurisdictional sovereignty and foreign affairs federalism.

           *    Kathleen Claussen is a Professor at Georgetown University Law Center. She thanks Julian Arato, Kristen Blankley, Pam Bookman, Zach Clopton, Josh Karton, Alyssa King, and participants in the Civil Procedure Workshop at Northwestern Pritzker School of Law, the Northeastern Law faculty workshop, and the AALS-ADR Works-in-Progress Conference at the University of Maryland for helpful comments on earlier versions of this Article. Special thanks to Matt Bauer, Jacob Kopnick, and Neha Vasagiri for their excellent research assistance. It has been a pleasure working with former students and the entire team at the Columbia Journal of Transnational Law.