Nancy A. Welsh

Interpretation and Application of the New York Convention in the United States

Foreign and non-domestic arbitration agreements and awards are enforceable in the United States under the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards as implemented by Congress’ addition of Chapter 2 to the Federal Arbitration Act (“FAA”). Supporters vigorously encouraged enactment of the FAA in 1925 to achieve prompt, informed, and fast-track resolution of commercial disputes in the marketplace. The silence of the FAA on many issues has required U.S. courts to produce a very large and rich jurisprudence on the recognition and enforcement by U.S. courts of foreign and non-domestic arbitration agreements and arbitral awards.

Enforcement of Foreign Arbitration Agreements and Awards: Application of the New York Convention in the United States

International commercial arbitration provides customized and efficient resolution for disputes arising out of transnational commerce. When arbitration occurs in states that have ratified the New York Convention, the process also offers enforceable outcomes even in states other than the one where the arbitration occurred. The United States ratified the New York Convention in 1970, and its courts overwhelmingly enforce both arbitration agreements and arbitral awards. There are exceptions, however, and American courts require the use of certain procedures. This Article provides a brief survey of American courts’ recognition and enforcement of foreign arbitration agreements and arbitral awards. It begins by examining the extent of the reciprocity and commercial reservations made by the United States and the circumstances under which the Panama Convention preempts the New York Convention. Turning to the enforcement of arbitration agreements and clauses, the Article examines American courts’ interpretations of the Convention’s requirement of a signed agreement in writing and the circumstances that can make an arbitration agreement “null and void” or “incapable of being performed.” The Article also summarizes courts’ treatment of claims of waiver and lack of knowledge regarding the existence of arbitration clauses. Regarding American courts’ enforcement of arbitral awards, the Article addresses the following defenses explicitly provided by the Convention: inability to present the case, lack of proper notice, lack of binding effect upon the parties, and violation of public policy. The Article also considers other defenses that arise out of application of the U.S. Constitution and federal rules of procedure: lack of personal jurisdiction and forum non conveniens. Finally, the Article distinguishes the circumstances that permit each of the following judicial dispositions: vacatur of arbitral award, enforcement or refusal to enforce arbitral award, and adjournment or stay of arbitral award